Elkharwily v. Franciscan Health Sys., No. 3:15-cv-05579-RJB (W.D. Wash. July 29, 2016).
After a previous order granting the plaintiff’s motion to compel discovery of “live” e-mails, the court denied the plaintiff’s motion as it related to archived e-mails, finding that “retrieving the electronically stored information (ESI) would result in an undue burden and cost” to the defendant.
The plaintiff, Alaa Elkharwily, a physician, alleged defamation and discrimination claims against Franciscan Health System after it revoked his privileges to practice at its facilities. In the course of discovery, Elkharwily requested “all e-mails and text messages concerning [him] between [Franciscan’s] employees, agents or attorneys” as well as correspondence about him between Franciscan and third parties. Franciscan objected that the request was “overbroad and burdensome” and asserted privilege protection over many of the documents Elkharwily sought.
The court previously granted Elkharwily’s motion for discovery of nonprivileged correspondence in “live” e-mail messages, those still contained within a searchable mail system. The current opinion considered only Elkharwily’s motion as it pertained to archived e-mail messages. Franciscan’s objection clarified that it “does not have an e-mail archiving system,” such that “there is no single location or application that can be queried.” Instead, Franciscan asserted that searching its “physical backup tapes” would take “1,400 hours in labor and $157,500 in costs.”
First, the court examined Federal Rule of Civil Procedure 26(b)(1), which defines the scope of discovery as “any nonprivileged matter that is relevant…and proportional.” The court noted that when ESI is “not reasonably accessible because of undue burden or cost,” it need not be provided unless the moving party demonstrates good cause to justify the burden.
Here, Franciscan argued that “the archived e-mails [were] not readily accessible, costly to restore, and of only minimal discovery value.” Because Elkharwily had “not identified what kind of material [he believed would] be found” in the archived correspondence, Franciscan characterized his discovery request as “an extremely expensive fishing expedition.”
Elkharwily contended that Franciscan “should have preserved e-mails in an accessible format” because he had “warned [Franciscan] of future litigation” in 2013. Specifically, Elkharwily stated that he asked Franciscan’s attorney, Bruce Megard, for these documents via a phone call in July 2013 in which he threatened litigation. According to Elkharwily, Megard “refused” to provide any e-mails. Megard contested this representation, declaring that he had “no recollection” of any such call and “no time entries for conversations” with Elkharwily in his billing system for that period. He further declared that “all discovery documents…had already been produced” by then.
The court held that while the e-mails “are discoverable,” Franciscan had “met its burden to show that retrieving [them] would result in an undue burden and cost.” Further, Elkharwily failed to demonstrate good cause sufficient to overcome that burden. The court noted that Elkharwily “tellingly” did not “name individuals” who might have e-mailed about him or “describe [the] suspected content” of the e-mails he sought. The court also gave “more weight” to Megard’s recollection of events, discounting Elkharwily’s attempt to shift blame to Franciscan for its failure to preserve its e-mails in a searchable form.
The court did allow that, if Elkharwily requested, Franciscan “should facilitate access” to its backup tapes for searching, but “only at [Elkharwily’s] expense, payable in advance.” Otherwise the court denied Elkharwily’s motion to compel Franciscan to search its archived e-mails.
For parties asking for discovery of information that will likely be costly or burdensome to produce, tell the court as specifically as possible what you expect to find, and carefully estimate the budget for retrieving the information. If you can, provide examples and spell out why you believe there is discoverable information that is relevant to your claim and explain how that relevancy trumps any associated costs. A thorough investigation before your motion to compel may make the difference between a sympathetic court and a court that views your motion as a “fishing expedition.”
Alternatively, producing parties asked to retrieve information from backup tapes or any other storage media should work with an experienced discovery or forensic data specialist to provide detailed estimates of the costs of recovering data to the court.