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Show Me More Than the Money – ESI Inaccessibility

By identifying custodians and their various sources of electronically stored information (ESI) through early data assessment (EDA), legal professionals can more accurately budget and strategically plan for litigation. Without a well-executed EDA plan, they may omit or delete critical data, or they may underestimate or overestimate the burden of accessing ESI.

As company executives and law departments know, e-discovery can be expensive and burdensome. Shrewd professionals will argue for cost-shifting as a way to recoup legal spend, but to do so they must show that the ESI at issue is “not reasonably accessible” under Federal Rule of Civil Procedure 26(b)(2)(B). Courts have clearly distinguished between accessibility and proportionality in cases with large volumes of ESI. For example, in Chen-Oster v. Goldman Sachs & Co., 285 F.R.D. 294 (S.D.N.Y. 2012), the court held:

While cost and burden are critical elements in determining accessibility, a showing of undue burden is not sufficient by itself to trigger a finding of inaccessibility. For example, the sheer volume of data may make its production expensive, but that alone does not bring it within the scope of Rule 26(b)(2)(B). Rather, the cost or burden must be associated with some technological feature that inhibits accessibility.

Likewise, in W Holding Co. v. Chartis Ins. Co. of Puerto Rico, No. CIV 11-2271 GAG, 2013 U.S. Dist. LEXIS 52313 (D.P.R. Apr. 3, 2013), the court further explained that the Zubulake v. UBS Warburg LLC (Zubulake III), 216 F.R.D. 280 (S.D.N.Y. 2003), cost-shifting factors do not come into play until after the court has established that the ESI is, in fact, not accessible.  This is a fact that the court must assess by examining the parties’ previous attempts to conduct discovery.

In other words, for a party to have any shot at successfully shifting the costs of production, it must establish the technical reasons why it cannot access the ESI; prohibitive costs alone do not make ESI inaccessible. This is where a strategic EDA plan pays off. An e-discovery specialist can evaluate the technical challenges and alternative means of obtaining evidence, helping to construct a reasonable, defensible argument about accessibility.

Laurie Stoni is an eDiscovery Consultant with Conduent. She can be reached at

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