Arbitrary Limits On The Number of Custodians And Use of ESI Costs In Different Case To Justify Burden And Splitting of Costs Rejected by Magistrate Judge

15 Apr 2021

In COUNTESS CARY v. NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORP, No. 19 C 3014 (N.D. Illinois February 22, 2021), before the Magistrate Judge was Plaintiff’s Motion to Compel Defendant’s production of ESI, which presented multiple issues. 

With respect to the issue of the number of custodians, Defendant proposed an arbitrary limit of five or seven custodians claiming that it ran test searches for two potential custodians which resulted in a total of 18,000 hits that would have to be reviewed – 11,000 hits for one person and 7,000 for the other.  However, as stated by the Magistrate Judge, “that, frankly, tells the Court very little about the ultimate burden on Defendant from executing whatever ESI protocol the parties eventually agree upon for all custodians.”  Since the parties had not yet reached agreement on search terms to be run across designate custodians, any burdens could be lessened by fine tuning searches or by phasing queries of particular data bases so that the parties could learn about the efficacy of certain searches before running others.  “The key is to continue to talk about these issues and not to take absolute line-in-the-sand positions without a solid basis for doing so and, even then, to continue to evaluate an absolute position.” Given the existing record, the Magistrate Judge was of the view that the 27 people identified by Plaintiff was a reasonable list of custodians rather than the arbitrary five or seven people that Defendant proposed. If Defendant wanted to narrow down Plaintiff’s list, it needed to provide sufficient information to Plaintiff so that Plaintiff could negotiate intelligently. 

The Magistrate Judge did, however, include Plaintiff as one of the custodians against whom searches would be conducted, rather than ordering Defendant to produce the entirety of Plaintiff’s email box, as Plaintiff requested.

Defendant also offered to augment its ESI production in this case by handing over the entire ESI production it made in a different discrimination case that was purportedly similar to Plaintiff’s claiming that doing so would reduce Plaintiff’s demand for information in this case.  Citing In re Broiler Chicken Antitrust Litig., 2018 WL 3586183 (N.D. Ill. July 26, 2018), the Magistrate Judge rejected Defendant’s offer and held that “this is a different case, and Plaintiff is entitled to discovery relevant to the claims and defenses in her case rather than to those in another case. So, Defendant’s offer to produce the ESI it produced in the Almon case does not obviate its obligation to search for and produce relevant ESI in this case.”   

Defendant also sought to show burden in this case by tendering the invoices it paid to execute the ESI protocol in the different discrimination case.  However, as noted by the Court, the Court had no information about the efficiency of the ESI production in the other case or the circumstances under which it was done and thus tendering the invoices did not meet Defendant’s burden in showing that what Plaintiff was requesting was not proportional to the needs of this case. 

With respect to data sources, Defendant argued that all it needed to identify was its work email as a relevant data source.  Yet Defendant refused to even engage in any discussion about what other data sources may exist. Accordingly, Defendant was ordered to “provide Plaintiff with information necessary for her to calibrate her discovery requests so she can seek relevant information that is proportional to the needs of the case, including information about data sources other than email.”

Finally, with respect to the cost of producing ESI, Defendant proposed that the parties split the costs and that its costs incurred for executing the ESI protocol in the other discrimination case could be used as a proxy for the burden it would have to shoulder in this case.  Both arguments held no merit.  Nothing presented by Defendant gave the Court any reason to set aside the presumption that each party should bear its own costs of producing ESI and no facts were presented as to why the costs in the other case could justify its use as a proxy for the costs to be incurred in this case.