Post Process

Everything to do with E-discovery & ESI

Case Blurb: Ahner; Primary Factor of Undue Burden Turns on Storage Format of Documents

Posted by rjbiii on October 17, 2008

[W]hether production of documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or inaccessible format (a distinction that corresponds closely to the expense of production). In the world of paper documents, for example, a document is accessible if it is readily available in a usable format and reasonably indexed. Examples of inaccessible paper documents could include (a) documents in storage in a difficult to reach place; (b) documents converted to microfiche and not easily readable; or (c) documents kept haphazardly, with no indexing system, in quantities that make page-by-page searches impracticable. But in the world of electronic data, thanks to search engines, any data that is retained in a machine readable format is typically accessible.

Auto Club Family Ins. Co. v. Ahner, 2007 WL 2480322 at *4 (E.D.La. Aug. 29, 2007) (citing Shira A. Scheindlin & Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task?, 41 B.C. L.Rev. 327, 364 (2000)).

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2 Responses to “Case Blurb: Ahner; Primary Factor of Undue Burden Turns on Storage Format of Documents”

  1. “But in the world of electronic data, thanks to search engines, any data that is retained in a machine readable format is typically accessible.”

    Sorry, but that statement is not quite right, in the sense that the real concern is not “accessible” or not, but “reasonably accessible.” See RUle 26(b)(2)(B) Much ESI that is machine readable (and it is hard to think of any ESI which is not machine readable, is very difficult and expensive to access.

    Ralph

  2. rjbiii said

    Agreed. Although the court does qualify the statement slightly by using the term “typically accessible,” the opinion overstates the ease with which search engines can access content regardless of format (or encryption, or protective mechanisms, or a number of other factors).

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