What happens when neither party submits that the information sought is accessible?

When Will There Be a Presumption that ESI Is Inaccessible?

Parties requesting e-discovery speak up or forever be subject to possible cost-shifting.  Generally, the responding party bears its own costs of complying with discovery requests; however, the rules of discovery allow a trial judge to shift the cost to the requesting party in certain circumstances.  Cost-shifting does not even become a possibility unless there is first a showing that the electronically stored information (“ESI”) is inaccessible.  However, if neither party submits to the Court that the ESI is accessible, then courts can presume it to be inaccessible.  This should be especially concerning to the requesting party, who typically does not bear the burden to pay for such costs.

In Zeller v. South Central Emergency Medical Services, Inc., Richard Zeller (“Employee”) filed an action against his former employer, South Central Emergency Medical Services (“Employer”) alleging an unlawful and retaliatory discharge under the Family Medical Leave Act (“FMLA”).  The Employee was out of work pursuant to the FMLA for approximately a month.  He alleged that, upon his return to work, the Employer did not restore him to his previous position and retaliated against him for using the FMLA.  The Employer claimed that the Employee was fired for excessive absenteeism.

The e-discovery issue in this case involved the allocation of costs to recover e-mails between the Employee and his doctors.  In this matter, there was no formal motion for a cost-shifting protective order, rather the issue was raised by both parties in their submissions to the court on outstanding discovery issues.  Typically, the rule is for cost-shifting to be possible, there must first be a showing of inaccessibility.  Here, the court presumed that the parties agreed the information sought was inaccessible because neither party submitted that the ESI was accessible.  Once the court presumed that the ESI was inaccessible, the court then analyzed whether discovery costs should be shifted by applying the seven-factor test from the Zubulake Court.  In Zeller, the court held that some cost-shifting to the Employer, the requesting party, was appropriate.

Although the ESI in Zeller was most likely inaccessible, parties requesting e-discovery can still learn a valuable lesson from this case.  The requesting party should submit to the court that the ESI sought is accessible to avoid both a presumption of inaccessibility and the possibility of cost-shifting.  Requesting parties should not leave it up to the producing party to bear the burden of showing that the ESI is inaccessible because the courts are now willing to presume this finding if neither party contends otherwise.        

Gary Discovery received a B.S. in Business Administration, with a concentration in Finance from the Bartley School of Business at Villanova University.  He will receive his J.D. from Seton Hall University School of Law in 2015.  After graduation, Gary will clerk for a presiding civil judge in the Superior Court of New Jersey.

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