When Does One Need to Produce ESI Generated By A Third Party?

When Does One Need to Produce ESI Generated By A Third Party?

This matter was before the Court on the Plaintiff, Equal Employment Opportunity Commission’s (“EEOC”) Motion to Compel Agreed-Upon Form of Defendant SVT’s Discovery Responses. EEOC requested electronically stored information (“ESI”) held by Kronos, a third party hiring program that SVT used to allow applicants to apply online for positions in its stores, after identifying perceived deficiencies with SVT’s previous production of data held by Kronos. Kronos allowed SVT specific access to custom reports relevant to SVT’s online application program, but did not allow SVT access to the raw data used to generate those specific, custom reports.

EEOC argued that, without this additional information from Kronos, it could not determine whether SVT could satisfy its discovery obligation. SVT argued that it did not have direct access to the raw data requested by EEOC, and that Kronos only provided it with a limited range of query and reporting capacity. Moreover, SVT argued that “the data, as kept in the ordinary course of SVT’s business and viewed through SVT’s views and reports, looks very different from how it is stored in Kronos’ proprietary format.” Kronos explained that it would cost $23,500 to generate a report that complies with EEOC’s discovery request.

Federal Rule of Civil Procedure 34(b)(1)(C) states that a party requesting production of ESI “may specify the form or forms in which electronically store information is to be produced. Federal Rule of Civil Procedure 34(b)(2)(E) states the procedure that apply to producing ESI:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(iii) A party need not produce the same electronically stored information in more than one form.

Federal Rule of Civil Procedure 26 states:

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. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

The court held that ”the data stored by Kronos that SVT can produce through the custom reports already available to it through its contract with Kronos is reasonably accessible, and must be produced in EEOC’s designated format.” The court also noted that any hiring decision made by SVT would have been based on the reports available to SVT from Kronos under their contract. Thus, the custom reports were kept by SVT in its usual course of business. However, the court held that the “data housed by Kronos in forms or reports that are not already available to SVT through the custom reports that Kronos set up for it is not reasonably accessible to SVT because of both undue burden and cost.”

Furthermore, the court held that EEOC must bear all the cost of production that is not reasonably accessible to SVT through its reporting capabilities. Thus, the court concluded that if “EEOC want[ed] to obtain the data directly from Kronos as a customized program and report tailored specifically to the EEOC’s discovery request at the estimated cost of $23,500, the EEOC [would] have to pay the cost of the discovery.”

In an effort to minimize motion practice, EEOC should have requested the specific, custom reports available to SVT by Kronos because any hiring decision would have been made after considering only those custom reports. It is not likely EEOC would have discovered any relevant information from ESI in a form that was not available to SVT.

Aaron Cohen, a Seton Hall University School of Law student (Class of 2015), focused his studies in the area of Family Law. He participated in the Seton Hall Center for Social Justice’s Family Law Clinic. After graduation, he will clerk for a judge in the Superior Court of New Jersey, Family Division. Prior to law school, he was a 2011 cum laude graduate of The George Washington University Columbian College of Arts and Sciences, where he earned a B.A. in Psychology.

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