Is ESI Produced in the Usual Course of Business Required to Be Organized by Plaintiffs?

Balancing the burden and expense of reviewing documents is a scenario that plays out many times over in eDiscovery and discovery in general. The court addressed this issue in FDIC-R v. Walter B. Bowden, et al., Case No. CV413-245 (S.D. Ga. June 6, 2014).

The parties tried, but failed to agree on a Joint Protocol for Electronically Stored Information (ESI). Plaintiff had already spent $614,000 to can around 153.6 million pages that were to be tendered to the defense.

At this juncture, Plaintiff moved to implement its own ESI protocol that would “balance the burden and expense of discovery among the parties.” Defendants insisted that Plaintiff was liable for shouldering the burden and expense of reviewing the documents and determining their responsiveness.

The court determined that Plaintiff should meet and confer with Defendants to reach an agreement upon a set of reasonable search terms, but that Plaintiff was not required to help defendants in organizing any ESI that had been requested.

While Plaintiff is required to respond to Defendant’s discovery requests and inspect its own records in doing so, it is only required that Plaintiff produce documents that are responsive to Defendant’s request.

ILS – Plaintiff eDiscovery Experts