Litigants Are Not Responsible for the Other Parties’ Document Storage Choices

Several cases remind us that a litigant cannot protect against ordinary discovery by using a record system from which it is inordinately burdensome to retrieve relevant documents. “The fact that a corporation has an unwieldy record keeping system which requires it to incur heavy expenditures of time and effort to produce requested documents is an insufficient reason to prevent disclosure of otherwise discoverable information.” Wagner v. Dryvit Systems, Inc., 208 F.R.D. 606, 611 (D. Neb. 2001) (citations omitted).

The normal and reasonable translation of electronic data into a form usable by the discovering party should be the ordinary and foreseeable burden of a respondent in the absence of a showing of extraordinary hardship. . . . [A discovering party] should not be forced to bear a burden caused by [the other party’s] choice of electronic storage.

In re Brand Name Prescription Drugs Antitrust Litig., No. 94-897, 1995 WL 360526, at *2 (N.D. Ill. June 15, 1995) (citation omitted).

It is difficult for the [Court] to understand how a [party] could have a record-keeping system such that it cannot read its own records without having to go to the time and expense of photocopying them off the microfilm. However, if that is the system which it uses, then it will have to bear the expense of producing the documents for inspection. . . . A court will not shift the burden of discovery onto the discovering party where the costliness of the discovery procedure involved is entirely a product of the defendant’s record-keeping scheme over which the plaintiff has no control.

Delozier v. First Nat. Bank of Gatlinburg, 109 F.R.D. 161, 164 (E.D. Tenn. 1986)

[A party cannot] absolve itself of [discovery] responsibilit[ies] by alleging the herculean effort which would be necessary to locate [responsive] documents. [A party] may not excuse itself from compliance with Rule 34 . . . by utilizing a system of record-keeping which conceals rather than discloses relevant records, or makes it unduly difficult to identify or locate them, thus rendering the production of the documents an excessively burdensome and costly expedition. To allow a [party] whose business generates massive records to frustrate discovery by creating an inadequate filing system, and then claiming undue burden, would defeat the purposes of the discovery rules.

Kozlowski v. Sears, Roebuck & Co., 73 F.R.D. 73, 76 (D. Mass. 1976). Importantly, this line of cases remain effective even after the 2006 amendments to Rule 26(b)(2)(B) and Rule 37(e) (which protect provide safe harbors for documents which are “not reasonably accessible because of undue burden or cost” or documents lost “a result of the routine, good-faith operation of an electronic information system.”).

A court-and more importantly, a litigant-is not required to simply accept whatever information management practices a party may have. A practice may be unreasonable, given responsibilities to third parties. While a party may design its information management practices to suit its business purposes, one of those business purposes must be accountability to third parties.

Phillip M. Adams & Associates, L.L.C. v. Dell, Inc., 621 F. Supp. 2d 1173, 1193 (D. Utah 2009).

The fact that a company … chooses to continue to utilize the [an outdated, burdensome] instead of migrating its data to its now-functional archival system should not work to plaintiff’s disadvantage. … [T]he Court cannot relieve Defendant of its duty to produce those documents merely because Defendant has chosen a means to preserve the evidence which makes ultimate production of relevant documents expensive. … To permit a party to reap the business benefits of such technology and simultaneously use that technology as a shield in litigation would lead to incongruous and unfair results.

Starbucks Corp. v. ADT Sec. Servs., Inc., No. 08-900, 2009 WL 4730798, *6 (W.D. Wash. Apr. 30, 2009) (citations, punctuation omitted).

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