Federal Rule Of Civil Procedure 26(b)(2)(b) And'reasonable Accessibility:' The Federal Courts' experience In The Rule's First Year

摘要

In the first year under the amended Rule 26 (b) (2) (B), the federal courts have sought to balance two conflicting issues. First, the federal courts heed the Advisory Committee's admonition that "[a] party's identification of sources of electronically stored information as not reasonably accessible does not relieve the party of its common-law or statutory duties to preserve evidence." Fed. R. Civ. P. 26(b) (2) (B) (advisory committee note). It is important that a responding party not use the ESI rules to avoid producing ESI or to hinder the production of relevant and responsive ESI. Accordingly, the federal courts ensure that relevant and responsive ESI is located and preserved so that its value to the case may be determined and the costs of its production, if necessary, allocated among the parties. Second, the federal courts have sought to ensure that the costs of ESI discovery are not used to skew the settlement value of a claim. The courts have thus far properly applied the "reasonable accessible" criteria to the production of ESI. Where the responding party objected on the ground that the ESI was not "reasonably accessible because of undue burden or cost," the courts have examined the question utilizing the factors handed down from case law. Further, where the requesting party has succeeded in making such a showing, the courts have considered and applied the "appropriate considerations" set forth in the Advisory Committee Note to Rule 26(b) (2) (B), as well as the factors set forth in Rule 26(b) (2) (C). In this way, the courts have been able to take a measured approach: (1) to assay the ESI landscape and apportion costs of production where necessary; and (2) to avoid having ESI costs become a factor in the value of pending litigation.