“A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Fed.R.Civ.P. 26(b)(2)(B).
A primary goal of the 2006 amendments to the Federal Rules of Civil Procedure was to provide greater advice to litigants and courts alike regarding the proper scope of electronic discovery. In light of boilerplate discovery requests that sought every possible shred of electronically stored information (“ESI”) that could potentially be relevant to a dispute, regardless of the cost of obtaining this information, judges and practitioners alike sought a clearer standard for understanding the boundaries of “standard” discovery. After extensive deliberation and input from the legal community, the drafters articulated a standard that certain ESI that was difficult or expensive to retrieve, i.e., “not reasonably accessible,” need not necessarily be produced in discovery, even if it contains relevant information. However, since its adoption, this standard has been interpreted somewhat differently than many had expected, with a significant number of courts ruling that specific ESI that is admittedly “not reasonably accessible” must nonetheless be produced, Rule 26(b)(2)(B) notwithstanding. What’s going on?
“Not Reasonably Accessible” vs. “Inaccessible”
It’s awkward to use the phrase “not reasonably accessible” in negotiations and court filings, and many practitioners have paraphrased Rule 26(b)(2)(B) to frame their arguments in terms of “accessible” and “inaccessible” data. Unfortunately, while this greatly simplifies the grammar and semantics used to argue a party’s position, this formulation misstates the Rule 26 standard, and it can create significant confusion, even for the legal team using these terms.
Very little ESI is truly “inaccessible.” Materials that have been physically destroyed or that have degraded past the point that their media can be read qualify as inaccessible, as would ESI stored on obsolete media that cannot be read by any equipment still in existence. However, by the same token, it is also impossible to extract any meaningful information from these repositories (or former repositories) of digital information. Indeed, because of the impossibility of retrieving information from inaccessible ESI, it could perhaps be argued that no preservation obligation, much less production obligation, applies to these repositories, since there is no way to obtain the information locked inside these materials. Truly inaccessible materials are mere footnotes in the discovery process.
However, anything less than total inaccessibility implies that the information stored in the digital repository could, in fact, be retrieved if sufficient incentive exists. It may be extremely difficult or costly to extract this data from the media on which it is kept, and the efforts required may include such extraordinarily efforts as purchasing long-obsolete hardware or forensically rebuilding raw data dumps into discrete files. However, for the right reasons, this information can be retrieved. Thus, in absolute terms, this material is not inaccessible, only “not reasonably accessible.” And this, in fact, is where litigants have had their strongest disagreements about the proper scope of discovery requests.
“Reasonably Accessible” Is Not A Novel Standard
If it can be established that information stored in a specific repository is theoretically accessible through some process, Rule 26 requires litigants and courts to assess the reasonableness of this effort. As explained by the Committee Notes to Rule 26(b)(2)(B), this test relies on multiple factors, including but not limited to the potential evidentiary value of the ESI, the costs (measured in both absolute terms and in terms of the value of the litigation) to retrieve this information, and the relative position of the parties. These factors should sound familiar—they’re the same tests that have been used by courts for years to analyze the burdensomeness of discovery requests under Fed.R.Civ.P. 26(b)(2)(C):
The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26(c). Fed.R.Civ.P. 26(b)(2)(C) (emphasis added).
It made a great deal of sense for courts to extend existing jurisprudence to define the ESI “not reasonably accessible standard.” First, courts build on existing legal precedent whenever possible, both to provide consistency for litigants and also to reduce the chance of committing reversible legal error. Harmonizing the new provisions of Rule 26(b)(2)(B) with existing case law permits practitioners to anticipate how courts will view and resolve these disputes—perhaps encouraging litigants to resolve some disputes without court intervention. Second, the provisions of Rule 26 are closely coordinated and are intended to help courts and litigants properly allocate discovery burdens between requesting and producing parties for all material being requested. To the extent that the new ESI-specific provisions further develop an existing analytical structure, they complement, not reject, the other provisions of Rule 26. Again, this may help litigants evaluate and resolve at least some discovery disagreements without substantial court involvement.
Practical Implications of the “Not Reasonably Accessible” Test
Though the “not reasonably accessible” standard extends existing law more than it presents new concepts, Rule 26(b)(2)(B) still impacts discovery practice in a number of significant ways. First, the new language makes it clear that producing parties must be prepared to concretely support their respective positions. Courts are demanding increasingly detailed descriptions of the precise burdens and costs associated with the collection and production of ESI. Instead of attorney argument or corporate affidavits generally claiming that substantial work is required to comply with a discovery requests, courts now expect detailed descriptions of the procedures that will be required, including project timelines, anticipated staffing, and itemized expense estimates. In light of the increased effort to fully document the burden of complying with a discovery request, many litigants are choosing to use third-party technical specialists, rather than corporate I.T. staff, to conduct and present this analysis, on grounds that this testimony is more persuasive coming from objective outsiders.
Second, Rule 26(b)(2)(B) also shifts, to some extent, the burden of proving the reasonableness of a discovery request for ESI. Under the Rule, a producing party can object to the production of ESI (though not the preservation) on grounds that it is not reasonably accessible. Once that statement has been made, it is up to the requesting party to show why this material should be produced, either because the production burden has been overstated by the producing party or because the requested material is of particular importance to the litigation. Such rebuttal arguments, whether made at a scheduling conference or through formal motion practice, requires the requesting party to present persuasive detail to demonstrate the reasonableness of its requests. That, in turn, may require a requesting party to conduct early I.T-related discovery and invest substantial time into understanding a producing party’s ESI repositories and computer infrastructure.
Third, courts are deciding Rule 26(b)(2)(B) disputes by allocating production costs. After all, if the requesting party pays for a portion of the expenses, otherwise “not reasonably accessible” ESI may become “accessible,” increasing the amount of evidence that may help resolve the legal dispute. Requesting parties are sometimes anticipating this analysis by unilaterally offering to share costs in exchange for receiving disputed ESI.
An ever-increasing number of reported court opinions will continue to flesh out the meaning of digital information that is “not reasonably accessible.” However detailed these discussions may be, their precise holdings will still need to be understood in the broader context of when they were written. Today’s “not reasonably accessible” data is equally likely to become more accessible—or wholly inaccessible—as technology continues to develop in different directions. Careful preparation and clear presentation will be a continuing part of successfully requesting and producing electronically stored information, whether it’s readily accessible or not.