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Accessible or Inaccessible: The Emerging Standard

Gregory L Fordham

During discovery, whether the producing party’s data is accessible or inaccessible is an important determination.  The producing party will have to provide its accessible data while it may not have to provide its inaccessible data.

Zubulake v UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003) is one of the best known decisions that differentiates accessible versus inaccessible data.  In that case, functional characteristics, such as off-line data (like backup tapes) and erased, fragmented or damaged data, were used to distinguish accessible versus inaccessible data.

The references to accessible and inaccessible data included in the 2006 amendments to the FRCP caused many to wonder how these terms would be interpreted and whether functional characteristics would carry over to the new rules.

Two decisions in Peskoff v Faber clarified the accessible versus inaccessible requirement under the new rules.  In essence, the Peskoff decisions interpret the  words in rule 26(b)(2) using their plain meaning and in a manner consistent with long established principles.

In its February 2007 opinion, Peskoff v Faber, 240 F.R.D. 26, 67 Fed.R.Serv.3d 760, the District Court for the District of Columbia found three things.

First, the producing party has the obligation to search available electronic systems for the information demanded in discovery.  So, there is no presumption that Electronically Stored Information (ESI) is different from any other kind of producible data.

Second, the producing party is relieved of producing specifically identified inaccessible data only upon a showing of undue burden or cost.  Consequently, a functional determination is not relevant.  The sole consideration is undue burden or cost.

Third, the producing party must bear the cost of its own production.  Cost-shifting does not even become a possibility unless there is first a showing of inaccessibility.  Thus, a party is not relieved of its production obligation merely because it may take time and effort to find what is necessary.

In the second decision, Peskoff v Faber, 2007 WL 2416119 (Aug 2007), the same Court clarified two points seized on by commentators.

First, the ready accessibility of information does not in itself require the production of that information. To be discoverable the data must still satisfy the traditional and essential standard of relevancy. 

Second, since there is no presumption that ESI is overly burdensome, a  party must  object in a timely fashion to producing the data and do more than simply argue to shift the costs to the requesting party.

Indeed, the revised rules describe a multi-faceted test for determining if the data is producible and whether the costs should be shifted. 

The tests include the following.

Nonetheless, relief is available to producing parties if the requests are overly burdensome.  But, they must be prepared to demonstrate and argue that relief is warranted under the criteria provided in the revised rules.

While intuitively it makes sense that the responding party is best situated to determine what ESI is reasonably accessible versus not reasonably accessible, cases like Rowe Entertainment v. The William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002) indicate otherwise. Indeed, those cases demonstrate how respondents will support their requests for protective orders with vendors suggesting inefficient production methods and charging big fees. In order to avoid having data erroneously categorized as inaccessible, requesters should stay active during the planning stages and curious about the respondent’s data and management systems.

The 2006 FRCP changes return electronic discovery to the same standards long imposed on paper productions.  The days when there was a presumption that electronic data should be treated differently are gone.  Cases like Rowe Entertainment and its progeny were a high water mark for times when the costs of producing electronic data were routinely shifted to the requesting party.