Conclusory Statements About Costs Are Insufficient to Shield Information from Discovery Under FRCP 26(b)(2)(B)

Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 2007 WL 333987 (D. Minn. Feb. 1, 2007)

In this order, District Court Judge David S. Doty concluded that a discovery order issued by Magistrate Judge Jeanne J. Graham was neither clearly erroneous nor contrary to law. The January 4, 2007 discovery order required, among other things, that defendants produce responsive documents by February 2, 2007. Defendants had argued that, while certain documents that were responsive existed, the cost to retrieve them from an electronic archive may be prohibitive. The magistrate judge determined that defendants had not met their burden to establish that the information sought was “not reasonably accessible because of undue burden or cost” under Fed. R. Civ. P. 26(b)(2)(B):

Defendants offer no proof, aside from conclusory statements, about the cost to obtain documents from electronic archives. So this concern cannot shield the defendants from discovery here.

(January 4, 2007 Order, at p. 12.)

In their objection to this ruling, defendants argued that technological constraints beyond their control rendered compliance with the February 2 deadline impossible. According to defendants, subsequent to the magistrate judge’s order, defendants’ outside vendor provided cost and time frame estimates for recovering certain information that was responsive to the discovery requests but located on archived, electronic backup tapes. Defendants therefore requested a modification of the February 2, 2007, deadline for those electronic items that were not readily available and permission to engage in ongoing production of the electronic discovery as it was processed from the back-up tapes. Plaintiff opposed the requested modification.

The district judge commented that “a modification of the deadline might be warranted if compliance with the deadline is in fact technologically impossible.” However, it found that the magistrate judge’s order on the parties’ numerous discovery disputes was thorough and well reasoned based on the information and arguments presented to the magistrate.

Note, defendants subsequently moved for an order enlarging the February 2, 2007 deadline, and for a protective order relating to the costs of the discovery from backup tapes. Copies of the memoranda of law in support of these motions are available here and here (motion for protective order re costs).