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Unsupported And Exaggerated Assertions Regarding The Burden Of Production Will Not Persuade The Court

By now we’re all familiar with the language recently implemented in the Federal Rules of Civil Procedure, providing employers with some protection against unreasonable demands related to ESI: “A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(B).  Rule 26(b)(2)(B) further provides that the objecting party must show that the requested production is unduly costly or otherwise burdensome. What is minimally required to establish that cost or burden likely varies by court but one recent case provides beneficial guidance on what is not sufficient.

In Mitchell v. Reliable Security, LLC, 2016 U.S. Dist. Lexis 76128 (N.D. Ga. May 24, 2016), the plaintiff in a pregnancy discrimination case asked for the employer’s ESI production of relevant e-mails and spreadsheets, to be produced in native file format.  The employer objected, claiming that it would be more expensive – by $3,000 – to produce the requested documents in their native format than to convert and produce the documents as PDFs.  This contention itself is a head-scratcher.  Why would it be more expensive to produce documents in their original format than to convert them?  Not surprisingly, the employer did not provide any substantive explanation for this purported cost, a fact the court noted the plaintiff was quick to point out:

Defendant’s statement regarding the estimated additional costs to produce native files rather than PDF files is insufficient because Defendant did not explain how it arrived at the estimated cost it provided, did not provide an actual estimate from an ESI expert or vendor, and did not explain its contention that production of emails and spreadsheets in native format would require more paralegal time to manage the production of native emails; because defense counsel’s own marketing communications suggest that it employs discovery management software commonly used to streamline ESI production; because there are other free or low-cost means of production of the native files; and because Plaintiff’s counsel has offered to assist in downloading emails in electronic format to minimize costs and avoid the retention of an expert or vendor to do the same.

The court found the plaintiff’s position persuasive, noting that it was “at a loss to understand why the production of native documents is more costly than production of PDF files” and ordering the employer to produce the files in native format as requested.

While this case underscores the importance of detailing how and why producing requested ESI would be too costly or otherwise burdensome, it also demonstrates that, typically, it’s not worth fighting over the form of production.  If the opposing party wants the documents in native format, give it to them.  If they would rather have PDF documents, give them that.  While on occasion there may be a valid reason for objecting to production in native format (for example, the need for redaction – not an issue in the instant case – which cannot be accomplished in a native document), most of the time it will not be worth the time and expense (and, as happened here, the disgruntlement of the court) to fight over format.

Jackson Lewis P.C. © 2020National Law Review, Volume VI, Number 224


About this Author

David T Willey, Management, Labor, EEO, Workers Compensation, Jackson Lewis Law Firm

David T. Wiley is a Principal in the Birmingham, Alabama, office of Jackson Lewis P.C. Mr. Wiley concentrates his practice in training, advising and representing management in labor, EEO, workers’ compensation and other employment matters.

He is a regular speaker at employment law and human resources seminars and conferences, including the Alabama State Bar Labor and Employment Law Section’s annual conference.


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.