Rule 26(b)(2)(B) debuted the concept of not reasonably accessible (NRA) electronically stored information. The concept of not reasonably accessible paper had not existed, or at least it wasn’t recognized in discovery in the past. Traditionally, the responding party paid the expenses of complying with discovery requests. But that was before the world shifted from paper to digital copy. This rule provides procedures for shifting the cost of accessing NRA to the requesting party.
With this rule, ESI is broken into two classes (or tiers) based on how attainable it is. Table 18-1 shows the two tiers.
Table 18-1 |
Accessibility of ESI |
| Reasonably Accessible | Not Reasonably Accessible |
| E-mail, data, and files on hard | Data or files that need to be retrieved |
| drives or actively used devices | using computer forensics methods |
| and networks | |
| Data on flash drives, CDs, DVDs | Un-indexed, hard-to-search backup tapes |
| ESI on backup tapes in use | ESI stored on obsolete media |
| ESI routinely accessed through the | ESI that was automatically deleted |
| normal course of operations. | according to a good faith data retention/ |
| disposal policy |
You’re being thrown a lifeline, which is avoiding the cost of getting the old or legacy storage media and their contents into searchable condition, but you have to be prepared to grab onto it. You must know where your ESI is so you can convince the judge that it’s NRA. This rule turns on the judge’s decision. It’s literally a judgment call. Courts may demand detailed descriptions of the precise burdens and costs associated with the collection and production of ESI, which in itself can be a big pain to prepare.
You also need to grab this lifeline while it’s there for you because the rule is protective and only protective. It’s not a rebate. That means its intent is to protect you from undue costs. In the case of Cason-Merenda v. Detroit Medical Center (2008), Detroit Medical asked for cost shifting under FRCP 26(b)(2)(B) after it had produced the requested ESI. The court refused. FRCP 26(b)(2)(B) is intended to provide protective relief before you bear the undue burden or cost.
Include the word reasonably instead of taking a shortcut. Use the entire term not reasonably accessible because the term inaccessible has a much narrower meaning. Your opponent may try to argue that your ESI is not inaccessible. Spare yourself having to defend against that argument by not opening that door.
Rule 26(b)(2)(C) factors may weigh strongly in favor of e-discovery of not reasonably accessible ESI if the information sought is highly relevant, not dupli-cative, and cannot be obtained from other sources.
