Whitepaper: What Does Reasonably Accesible Mean?
05-12-2015, Avansic - Amy Sellars (Attorney & Discovery Subject Matter Expert, Williams Companies), Lance Watson (CIO, Avansic), and Dr. Gavin W. Manes (CEO, Avansic)
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What is Reasonably Accessible Data?

The Federal Rules of Civil Procedure allow for broad discovery, and the growing volume of electronic data can create substantial burden and expense when litigation arises. A frequent dispute in e-discovery is the accessibility of documents and data. F.R.C.P. Rule 26(b)(2)(B) provides:

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.

The Rules do not define “reasonably accessible.” The comments explain that the rule cannot provide for all the possible technologies and scenarios that the concept might encompass. Thus, in many cases, the knee-jerk response to a request for production is “the request is too broad, the time required to locate relevant data is too long, and the cost is too burdensome.”

But what constitutes “burdensome”? How does accessibility play a part in a declaration of burdensomeness? What work went into determination of data not being “reasonably accessible?” To determine this, consider the factors that influence the determination of accessibility.

The Rules presume that data that is not “reasonably accessible” is not discoverable. If challenged, the party claiming that data is not reasonably accessible must show undue burden or cost associated with discovery. The requesting party may be entitled to discovery to test the producing party's claim that data is not reasonably accessible, such as taking the deposition of persons knowledgeable about the data sources, or by sampling the data at issue. Even when the producing party makes a showing of undue burden or cost, the other party may obtain discovery if it can show “good cause.” The Civil Rules Advisory Committee of the Judicial Conference of the United States has offered seven factors for courts to consider when evaluating a good cause claim. (See inset for factors.)

Rule 26(f) requires the parties discuss “any issues relating to disclosure or discovery” of electronically stored information. Thus, if you believe that your client has potentially relevant data sources that are not reasonably accessible, you should be prepared to discuss those at the 26(f) conference. This means making an effort to understand with your client's electronically stored information early in the case, including investigating older data that custodians may have forgotten or may overlook (like backups of voicemail from another era or data stored in databases). Asking the right questions early is critical to avoiding costly disputes and potentially expensive discovery efforts down the road.

The concept most frequently invoked when discussing accessibility is the media on which the data is stored. Courts usually consider media such as hard drives easily accessible, but media such as backup tapes are inaccessible without cost or burden. Some of the technology classifications and issues with which you should be familiar are discussed below.

Issues with Technology

On a hard drive, you can simply navigate through the directory structure to locate the data you want. But data on magnetic tape requires that the data be restored to another data source – like a hard drive – before the data can be easily accessed. This process can be time consuming and costly and is typically all or nothing. You must restore an entire tape to access just a small bit of potentially relevant data.

Some data sets are so large that they must be stored on more than one tape to represent a single copy of the data. Under these circumstances, you must restore the entire set of tapes before any data can be easily accessed.

The method by which your client backed up its data to tape could create additional issues, and you need to consider these in making your argument of undue burden and cost. If the data backup was incremental, you must restore the series of tapes in a sequential order to find the data from a particular date. If they are not incremental, you are likely to find that the data is duplicative of backups from other dates, creating cost for ingestion and review of all that duplicative data.

Age Matters

We are victims of rapid progress in the technology world. Imagine a set of tapes or other media that belong to a technology of years (or months) gone by. Think of getting data from floppy disks (8.5 or 5.25), ZIP cartridges, or Bernoulli drives. The data is available, but you (or your client) will have to locate a piece of hardware to load the data. You may also need software drivers or emulators in order to view that data once it loads.

Storage software and algorithms change over time. Just because you can access the data does not mean the data will be in a format that you can easily read or understand.

Software Matters Too

Consider data such as CAD drawings or oil well data. These types of data may require access to proprietary software in order to review the data in a reasonable manner. Depending on software licensing issues, you may have considerable cost just to provide access to the data in a meaningful way. You may have to consider alternative means of data review, such as converting the data to another format or allowing remote access to systems that can view the data in its native form.

What About Data Recovery?

Occasionally, data from damaged or broken media or forensic recovery of deleted data or data fragments is required. While this category would appear to be the most inaccessible, courts have not shied away from granting this kind discovery when the requesting party shows good cause. See Tener v. Cremer, 931 NYS.2d 552 (September 22, 2011) (remanding to the trial court for consideration of whether plaintiff had shown good cause for discovery of a text file created over a year prior and written over at least a dozen times when the information was not available from any other source).

Investigate Early and Often

Electronic discovery requires that the attorney investigate the client's data sources early in the case, and continue to ask questions. A case can easily outlive a piece of relevant technology, and data that was accessible when the case began may become inaccessible if the client changes database programs or retires hardware while the case is pending. Educate your client, and continue to ask questions about potential data sources and the means of producing data from those data sources as the case progresses.

When making an argument of undue burden and cost, be sure that you accurately represent the effort and cost required with detail about the data set, the method of backup, and the likely volume of potentially relevant data. Other considerations include: the search methodology required to identify data; the type of electronically stored information; the technology required to render the data “reasonably accessible”; the time required to perform the relevant work; the estimated cost to process or translate the data into a reasonably useable form; the cost of review; and the relative value of the case - or the importance of the inaccessible data to the case - compared to the likely cost.

Most courts find that electronic discovery costs are not recoverable, except to the extent that those costs are analogous to the traditional “copy” costs of paper discovery. However, a recent decision in Colorado suggests that this may change as e-discovery continues to evolve, and e-discovery disputes continue to consume the lion's share of cost and resources associated with litigation. See Comprehensive Addiction Treatment Center, Inc., et al. v. Daria Leslea, et al., 2015 WL 638198 (D. Colo., Feb. 13, 2015) (holding requesting party responsible for the cost incurred by producing party in retaining a consultant to retrieve and convert data requested by the plaintiffs into a retrievable format).

Finally, remember that accessibility is not related to your client's duty to preserve data. Potentially relevant data must be preserved as soon as litigation is reasonably anticipated, regardless of the accessibility of the data, or even the cost to preserve data that is not reasonably accessible.

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

About the Authors
Amy Sellars cut her teeth on databases in the education services industry before law school. She is now an attorney with The Williams Companies, where she oversees litigation as well as e-discovery processes and strategy for the company. Ms. Sellars is a certified legal project manager.

Lance Watson oversees all research and development efforts at Avansic as well as laboratory and systems enhancement. He serves as a Project Manager and expert witness. He received his Master of Science in Computer Science from TU.

Dr. Gavin W. Manes is a nationally recognized expert in e-discovery and digital forensics. He is currently the CEO of Avansic, a firm that provides the legal, business, and government sectors with e-discovery, digital forensics, data preservation, and online review services. He founded Avansic in 2004 while serving as a Computer Science professor at the University of Tulsa. There he led the creation of nationally recognized research efforts in digital forensics and telecommunications security.