E-Discovery - The Long and the Short of 'Accessibility'

Understanding What Should Be Saved and What Should Not

With the exception of "electronically stored information" or ESI, the most significant buzzword spawned by the new e-discovery jurisprudence is "accessibility." The concept of accessibility is now codified as an important threshold of discoverability and may also trigger important cost-sharing discussions with the court.

Recently revised Fed. R. Civ. P. 26(b)(2) allows parties to object to the production of electronically stored information "from sources that the party identifies as not reasonably accessible because of undue cost or burden." Such a designation is not absolute protection, however, and the court may order production upon a showing of good cause.

The question of accessibility creeps up quickly, and the risk is more than just theoretical that the failure to raise the "accessibility issue" at the initial conference can result in waiver and, hence, a much more onerous and costly discovery burden. Fed. R. Civ. P. 26(f) requires parties to develop a proposed discovery plan that "indicates the parties' views and proposals concerning ... any issues relating to the disclosure or discovery of electronically stored information [and] what changes should be made in the limitations on discovery imposed under these rules."

Reading the two parts of Rule 26 together, if the parties are discussing production of emails the most common focus of e-discovery during the initial conference, they should at that time have a grasp of the extent to which certain custodians' emails are not "accessible" and divert demands for production to the less costly media, at least for the time being. This of course begs the question of what "accessible" means in the context of the rules.

The official commentary to the rule states, "[I]t is not possible to define in a rule the different types of technological features that may affect the burdens and costs of accessing electronically stored information." In other words, the rules do not define "accessible" in black and white terms.

Reliable shades of gray can be found in the case law, however. While not legally binding on courts outside of the Southern District of New York, the multiple opinions authored by Judge Scheindlin in Zubulake v. UBS Warburg are widely regarded as strong persuasive authority on these issues. The first widely cited opinion received attention because of its cost-shifting analysis, in which the court reinforced long-standing precedent...