Court Compels Production of ESI for a Period of 18 Years, Shifts Majority of Costs to Requesting Party
Takeda Pharm. Co., Ltd. v. Teva Pharm. USA, Inc., 2010 WL 2640492 (D. Del. June 21, 2010)
Defendants sought production of electronically stored information for a period of 18 years – a significant departure from the default period of five years previously imposed. Upon plaintiffs’ showing that retrieval of the additional data by a vendor would cost approximately $1 million to $1.5 million (not including the cost of review), the court found the information was “not reasonably accessible”. However, the court also found that defendants had shown good cause to compel the requested production. Considering the relevance of the data and its possible unavailability from an alternative source as well as plaintiffs’ costs from producing the ESI, the court reasoned that “in relation to the importance of the interest at stake … including the likely very substantial financial stakes, [the] costs may be justified.” Accordingly, the court granted defendants’ motion to compel and held that if plaintiffs employed an outside vendor to assist in fulfilling their obligation, defendants would bear 80 percent of the reasonable vendor costs incurred.