A party to litigation often faces a situation in which it is being asked to produce electronically stored information (ESI) from a data source that does not appear to be accessible. Fortunately, Federal Rule of Civil Procedure 26(b)(2)(B) provides a framework to help determine what steps a party should take if ESI appears to be inaccessible.

According to that rule, a party to litigation does not need to provide discovery of ESI “from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(B). If a motion to compel discovery is filed, the party withholding ESI must show that the information is not reasonably accessible due to undue burden or cost. Even if a showing of undue burden or cost is made, the court may still order discovery from such sources if “good cause” is shown.

Inaccessible Data

The threshold inquiry in a Rule 26(b)(2)(B) analysis is whether the ESI is inaccessible. Inaccessible data may include ESI from backup tapes or erased, fragmented, or damaged data. Zubulake v. UBS Warburg, 217 F.R.D. 309, 321-22 (S.D. N.Y. 2003).

The Sedona Conference also suggests a number of data accessibility and complexity factors to evaluate in determining whether ESI is reasonably accessible. The Sedona Conference Commentary on: Preservation, Management and Identification of Sources of Information that are Not Reasonably Accessible, A Project of the Sedona Conference Working Group on Electronic Document Retention and Production, at 12 (July 2008).

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These factors include evaluating:

• whether the data comes from physically damaged media
• whether the data comes from legacy media
• whether there is transient complexity (such as constant web page deletion) or hidden complexity (deletion of files after the recycling bin has been emptied)

Good Cause

If it turns out that ESI is not reasonably accessible, a party may still be able to obtain the ESI by showing good cause. This requires balancing the costs and potential benefits of the discovery.

In determining whether good cause exists to obtain inaccessible ESI, the parties and court should consider:

1. the specificity of the discovery request
2. the quantity of information available from more easily accessible sources
3. the failure to produce relevant information that seems likely to have existed but is no longer available
4. the likelihood of finding relevant, responsive information that cannot be obtained from other sources
5. predictions as to the importance and usefulness of the data
6. the importance of the issues at stake in the litigation
7. the resources of the parties.

(Commentary to Fed. R. Civ. P. 26(b)(2).)

The responding party has the burden of showing that the data is not reasonably accessible due to undue burden or costs. They also have the burden of showing its need for the data outweighs the burden and costs of producing the information.

The commentary to Rule 26(b)(2) explains that a “party’s identification of sources of [ESI] as not reasonably accessible does not relieve the party of its common-law or statutory duties to preserve evidence.” Given the fact that there may be a dispute as to whether inaccessible ESI should be preserved, the parties should discuss this issue at the beginning of the litigation. If there is a disagreement as to whether inaccessible data should be preserved, the parties should take up the issue before the Court.