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Federal Court In Virginia Rejects Defendant’s Proportionality Argument

A federal court in Virginia recently granted a plaintiff’s motion to compel the defendant to search its computer systems for electronically stored information, rejecting the defendant’s argument that the requested ESI was “inaccessible” due to burden and cost and that the requested discovery was not proportional to the needs of the case.  In Wagoner v. Lewis Gale Med. Ctr., LLC (W.D. Va.), the plaintiff sued defendant Lewis Gale Medical Center alleging that he was discriminated against on the basis of his disability in violation of the Americans with Disabilities Act.  The plaintiff had requested that the defendant search for the ESI maintained by two custodians over a four month time period and proposed a list of 14 search terms.  The defendant contended that it would cost over $20,000 just to collect the requested ESI, based on a cost estimate obtained by a third party vendor.  The defendant further estimated an additional $24,000 in costs to review the ESI prior to production, for a total estimated cost of roughly $45,000.  Based on these cost estimates, the defendant argued that the discovery should not be permitted because it is not proportional to the needs of the case in light of the plaintiff’s “limited potential recovery.”

In rejecting the defendant’s proportionality argument and granting plaintiff’s motion to compel, the court noted that the defendant “chose to use a system that did not automatically preserve emails for more than three days, and did not preserve emails in a readily searchable format, making it costly to produce relevant emails when faced with a lawsuit.” The court also noted that proportionality is not solely a question of whether the particular discovery method is expensive.  The court pointed out that defendant failed to offer any alternative proposals to obtain the requested information other than to have the witnesses search their own computers for potentially responsive information, which the court found was insufficient.

The court also held that the defendant failed to carry its burden of demonstrating that the ESI was “inaccessible,” noting that the mere fact that defendant could not conduct the ESI searches in house and would be forced to hire a vendor did not render the data inaccessible.  The court also noted that the estimate provided by the defendant’s proposed ESI vendor “seems exceedingly high” since the request ESI was limited to two custodians over a four month timeframe.

Lastly, the court also rejected the defendant’s request for cost shifting in light of the fact that “the ESI sought is reasonably accessible without undue burden or expense.”

This case serves as an important reminder that broad brush assertions of undue burden will not be accepted by the court.  While it certainly is important to provide the court with objective data and metrics to support an undue burden and/or proportionality argument, it is equally important that those calculations not be overstated.

Jackson Lewis P.C. © 2020National Law Review, Volume VI, Number 215


About this Author

Justin R. Barnes, Jackson Lewis, Federal Employment Lawyer, Discrimination Allegations Attorney

Justin R. Barnes is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He represents employers in federal and state courts and before administrative agencies on a variety of labor and employment related issues, including collective and class action wage and hour disputes, labor arbitrations, allegations of discrimination, and employment-related contract disputes.

Mr. Barnes’ practice is focused primarily on defending complex wage and hour class and collective actions in state and federal courts across the...


Brett M. Anders is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He exclusively represents management in workplace law, including counseling and litigation.

Mr. Anders routinely advises clients regarding day-to-day employment issues, such as employee discipline and discharge, disability management issues, reductions-in-force and restrictive covenants. He also regularly conducts training programs for employers on a variety of employment-related topics, such as performance management, sexual harassment awareness and disability management.