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Undue Burden Objections in eDiscovery: Ways to Get the Argument Right

Chris Schultz eDiscovery Expert
Chris Schultz, Level 2 Legal's EVP & General Counsel

Like a classic Greek tragedy in three acts, a recent case from the Northern District of Ohio provides a cautionary tale about how one should never rest on an early undue burden objection win – especially when the facts turn out to be other than first represented.

Act I

In Meredith v. United Collection Bureau, Inc., No. 1:16 CV 1102 (N.D. Ohio April 13, 2017) (available at law.justia.com), the plaintiff initiated a putative class action lawsuit against the defendant, claiming violations of the Telephone Consumer Protection Act based on multiple auto-dialed calls to her mobile phone in an attempt to collect a debt. As part of her class certification discovery, Ms. Meredith first requested – and later sought to compel – UCB to provide information for “wrong number” call recipients as identified in UCB’s database.

UCB objected, claiming it would have to conduct a manual review of more than 278,000 accounts and individual records in order to respond to Ms. Meredith’s request. Ruling such a request – and the manual work required to respond to same – unduly burdensome, the court denied Ms. Meredith’s motion to compel.

Act II

But Ms. Meredith and her counsel were not deterred. After their first motion to compel was denied, they noticed the deposition of UCB’s Chief Technology Officer. During his deposition, the company’s CTO admitted “that a program could, in fact, be written to run [an automated] query of its database to identify ‘wrong number’ recipients of its autodialed, prerecorded-voice calls.”

Following the CTO’s deposition, Ms. Meredith and her counsel made the following alternative requests of UCB: (1) write the program and provide us with the putative class information we seek; or (2) produce the relevant portions of the database in question and allow our expert to write such a program; or (3) stipulate to numerosity under Federal Rule 23 and forego production of the putative class information, at least until after the court has a chance to rule on class certification.

Act III

UCB declined all three of plaintiff’s proposals. Ms. Meredith then filed a new and second motion to compel production of the putative class information, reciting the alternative proposals offered to UCB. UCB cross-moved for a protective order.

This time, the court granted Ms. Meredith’s motion to compel. As the court noted, not only did UCB not dispute that the information sought by Ms. Meredith was relevant to establishing the “size and nature of the class that she wants to represent,” it also did not suggest “any other method by which Plaintiff can obtain the information.”

Instead, UCB only argued that being required to write a program to extract the information would allegedly violate the Federal Rule’s requirement that discovery of ESI be limited to data as it is kept “in the usual course of business,” and that writing, testing, and running the program described by its CTO “‘would take a few days’ and could harm [UCB’s] ability to conduct its business during regular business hours.”

Judge Gaughan found both arguments unpersuasive, with the court citing multiple cases where fellow courts “have long recognized that defendants may be required under the Federal Rules to create computer programs to search an existing database for relevant information” – including cases where the time and expense to do so were much more than contemplated here.

Observations

This case provides several key takeaways for those of us who – faced with a motion to compel – might be inclined to counter such a motion with an undue burden argument.

  • First, be absolutely certain of the burden you intend to present to the court. Did UCB fully discuss the programmatic search option with its IT department? How about with its CTO? How thoroughly was the CTO questioned and prepared in advance of his deposition? Be prepared with accurate, defensible, and repeatable facts and figures, supported by expert testimony, if necessary.
  • Second, put yourself in the shoes of your opponent and understand at least as well – if not better – than her the elements of the claims, defenses, or (as in this case) class certification at hand. UCB didn’t do itself any favors by arguing to deny Ms. Meredith access to a key source of clearly probative class certification information – especially, as the court noted, when it didn’t offer any viable alternative way to ascertain the information.
  • Third, always take a step back and impartially evaluate the options presented to you by your opponent and consider whether a more reasonable – and possibly more cooperative – approach might be the better path. The judge in this case was undoubtedly moved, at least in part, by the three thoughtful and reasonable alternatives presented by Ms. Meredith and her counsel. In hindsight, UCB would have better served its cause – and protected its credibility with the court – by at least engaging in a dialogue with Ms. Meredith about those three or possibly other alternatives.
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Contact Chris to learn more about ways to make undue burden arguments more persuasive or – in appropriate circumstances – how such motion practice can and should be avoided altogether.