Burden, Cost, and Time

Burden, Cost, and Time

Author: JAT
Case CitationU.S. ex rel. Proctor v. Safeway, Inc., No. 11-cv-3406 (C.D. Ill. Mar. 08, 2018)
Employee/Personnel/Employer Implicated: All
eLesson Learned: Responding to a discovery request as too burdensome, cost prohibitive and that the request cannot be completed within the timeframe of discovery is a fact-intensive inquiry.
Tweet This: Motion to compel is granted in (key) part.

Overly burdensome. Cost prohibitive. Cannot be accomplished with the timeframe of the discovery schedule. These are the perennial phrases included in thousands upon thousands of responses to motions to compel electronically stored information. In U.S. ex rel. Proctor v. Safeway, Inc., the relator requested various ESI including Safeway’s pharmacy transaction data (PDX Data). Negotiations ensued, and eventually Safeway produced 260, 640 Bates numbered documents and approximately 575,000 issue files in native format. A keyword search was used to collect issue files, but were not reviewed to see if the produced documents were responsive to Proctor’s Request. Some of the issue files contained incomprehensible symbols. Moreover, Safeway failed to produce the PDX data. Proctor then filed a motion to compel, asking that (1) Safeway review the issue files to identify the non-privileged responsive documents; (2) that responsive documents produced from issue files in Bates numbered tagged image file format; and (3) order Safeway to produce the PDX data immediately. Safeway was met with the response: Proctor’s request is overly burdensome, cost prohibitive, and cannot be accomplished within the timeframe of the discovery schedule.

Consistent with the Federal Rules of Civil Procedure one must produce documents that are relevant for discovery, in the manner kept in the usual course of business, in an organized fashion. Part of the ESI request instruction provided that Safeway must produce image files if it created a litigation database, Safeway was not required, however, to produce documents in more than one form. The judge ordered that each issue files be placed with a unique Bates number, that the issue files must be reviewed to identify responsive documents, and that the PDX data must be produced given that Safeway had more than a year to respond to the request.

Overly burdensome, cost prohibitive, and cannot be accomplished within the timeframe of the discovery. Could Safeway have been correct?

Overly burdensome: Using Technology Assisted Review (TAR), which can expedite the organization and collection of documents, Safeway is able to review the issue files in a manner responsive to Proctor’s request. Safeway further stated that it was willing to place Bates numbers on produced documents during negotiations.

Cost prohibitive: Safeway had asked that if the Court orders it to produce image files of the issue files, that the Court order Proctor to pay a significant part of the costs of producing any image file copies. The court, however, did not order Safeway to produce image files, the native format was suitable, so the request for costs was rendered moot.

Cannot be accomplished within the timeframe of discovery: As noted above, the judge observed that Safeway had more than a year to comply with the discovery request for PDX files.

JAT is a second-year law school student at Seton Hall University School of Law pursuing an Intellectual Property Concentration along the Technology and Business Law track.

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