Plaintiffs Allowed ESI Discovery Despite Pending Motion to Dismiss
In the class action case Galaria v. Nationwide Mutual Insurance Company, Civil Action No. 2:13-cv-00118, 2:13-cv-00257 (S.D.Ohio, December 16, 2013, defendant asked the court to stay discovery pending a ruling on its Motion to Dismiss. Plaintiff electronic discovery requests had included electronically stored information (ESI) over a timespan of five years from the defendant’s “Computer Systems.” This included electronic data from servers, hard drives, desktops, laptops and any other electronic storage device.
Plaintiffs were seeking this information regarding an alleged data breach and contended that a number of factual disputes existed and were raised in the Motion to Dismiss, which could be resolved through discovery. Additionally, due to the government investigation of the data breach, plaintiffs pointed out that most of the requested ESI and relevant documents were already in defendant’s possession.
The court noted that Rule 26(c) permitted the issuance of a protective order staying discovery for “good cause shown.” However, the court also pointed out that the party resisting discovery must demonstrate the production would be unduly burdensome; defendants here failed to carry such burden. They made no attempt to work out a compromise with plaintiffs, they offered no evidence to demonstrate the necessary actions necessary for the production, and they did not even respond to plaintiffs’ allegation that most of the responsive documents had already been gathered for the government investigation into the data breach.
The court did leave open the issue of whether defense production would be unduly burdensome as there had not yet been any “meaningful discussion” of proper scope of discovery. The court denied to issue a protective order to stay discovery, and implored the parties to work out the scope and method of production cooperatively.