Court Denies Motion Requiring Plaintiff to Pay for Electronic Production by Defendant

Bills v. Kennecott Corp., 108 F.R.D. 459 (D. Utah 1985)

In age discrimination suit, plaintiffs sought production of documents containing detailed information about numerous employees. In order to supply the data to plaintiffs in usable form, defendant offered to supply either a computer tape or printout of the data at plaintiffs’ choice, but only on the condition that plaintiffs would pay the cost to generate the information. Defendant produced the material in hard copy, as requested by plaintiffs, and sought an order requiring plaintiffs to remit $5,411.25. 108 F.R.D. at 460.

The court concluded that defendant’s computer-stored information was discoverable, and observed: “It is now axiomatic that electronically stored information is discoverable under Rule 34 . . . if it otherwise meets the relevancy standard prescribed by the rules, although there may be issues in particular cases as to the form of what must be produced.” Id. at 461. It continued:

From the largest corporations to the smallest families, people are using computers to cut costs, improve production, enhance communications, store countless data and improve capabilities in every aspect of human and technological development. Computers have become so commonplace that most court battles now involve discovery of some type of computer-stored information. . . .

Improvements in technology which advantage almost everyone have become commonplace and widespread, and because we live in a society which emphasizes both computer technology and litigation, the mix of computers in lawsuits is ever increasing. Accordingly, parties requested to produce computer stored data will have to shoulder the burden of showing “undue” expense or burden before courts should shift the costs to the requesting party. . . .

The question must be resolved on a case-by-case basis. However, certain propositions will be applicable in virtually all cases, namely, that information stored in computers should be as freely discoverable as information not stored in computers, so parties requesting discovery should not be prejudiced thereby; and the party responding is usually in the best and most economical position to call up its own computer stored data.

Id. at 462-64. Denying defendant’s motion to shift the cost of the production to plaintiffs, the court highlighted several factors it found persuasive: (1) the amount of money involved was not excessive or inordinate; (2) the relative expense and burden in obtaining the data would be substantially greater to the requesting party as compared with the responding party; (3) the amount of money required to obtain the data as set forth by defendant would be a substantial burden to the plaintiffs; and (4) the responding party was benefited in its case to some degree by producing the data in question. Id. at 464.