Lacking Adequate Information About Defendant’s IS Capabilities and Costs of Electronic Production, Court Orders Parties to Confer and Report Back

Thompson v. Jiffy Lube Int’l, Inc., 2006 WL 1174040 (D. Kan. May 1, 2006)

In this (uncertified) consumer class action, the court considered plaintiffs’ motion to compel the production of documents. Defendant contended that plaintiffs’ production requests exceeded the scope of class certification discovery, and were vague, overly broad and unduly burdensome. For example, defendant asserted that approximately 31 million vehicles were serviced annually at company-owned and franchised Jiffy Lube stores, and that plaintiffs’ request for all vehicle service records going back to January 1, 1997 was unduly burdensome and overly broad. Plaintiffs responded that defendant failed to carry its burden of showing “undue burden” and that the requested documents could be produced in electronic format at a minimal cost.

The court began with the following observation:

With respect to the issues of cost and electronic discovery, the limited explanations provided by the parties do not provide sufficient information for the court to determine whether production of the electronic data is unduly burdensome. Unquestionably, producing 100 million vehicle reports dating back to 1997 entails a significant cost; however, the court questions whether defendant considered the most efficient method for producing such information when estimating the cost of generating readable “TIFF” images of vehicle history reports at $10,000,000. Similarly, plaintiffs’ conclusory assertion that the information can be produced in “native PST format” and then printed “without any additional costs” is equally unpersuasive. The court is simply unable to determine the reasonable costs of electronic production based on the current record. As explained in greater detail below, the parties shall confer on the format for production and related costs and, if necessary, the matter will be set for a hearing.

The court is also troubled by the overly broad nature of plaintiffs’ production requests. For example, plaintiff requests “any and all information related to email . . . including messages.” On its face, a request for the production of all corporate and employee email communications dating back to 1997 is overly broad. The mere suspicion that a document containing relevant evidence might be located in defendant’s computer files does not justify the production of all email communications or computer records. Plaintiffs’ production requests must be reasonably tailored to secure the production of documents relevant to the issues in this lawsuit.

With these guidelines in mind, the court went on to address the contested production requests, including the following:

oElectronic databases containing the name, telephone number, amount charged, amount paid, and services rendered for all customers who had vehicles serviced at any Jiffy Lube location (company owned or franchise)

The court stated that the record did not contain sufficient information for the court to fully evaluate the cost and expense of producing the information. Thus, it ordered the parties to confer and determine whether (1) an alternative, such as a random sampling, would suffice and/or (2) a stipulation can be reached concerning the reasonable cost for production. The court ruled that, if the parties were unable to reach an agreement, the matter would be set for an evidentiary hearing and, at a minimum, Jiffy Lube would have to produce witnesses capable of testifying as to the most efficient manner of production and the costs associated with production. Similarly, plaintiff would be required to produce witnesses capable of addressing production formats and associated costs. The hearing, if necessary, would also determine whether production was unduly burdensome and which party would bear the costs of production.

oCustomer complaints, including electronic databases and email of individuals responsible for addressing customer complaints

The court found that such documents were directly related to class certification issues, and ordered defendant to promptly produce what was described as “over 100 boxes of hard copy documents” concerning consumer complaints. In addition, the court noted that defendant also maintained an electronic database which it contended would cost “tens of thousands of dollars” to produce. As with vehicle service records, the court was unable to discern the reasonable cost of reproducing such data in a useable form. The court ordered the parties to confer on whether an alternative method, such as a random sample, would suffice. If the parties were unable to agree, the court stated it would conduct an evidentiary hearing concerning the cost of production. In addition, the court also warned the defendant to be careful about the representations it was making about its system capabilities:

Defendant is admonished that its assertions and representations concerning the cost of producing documents will be closely scrutinized during the hearing. Sanctions may be imposed under Fed.R.Civ.P. 26(g) if it becomes evident that defendant generates routine reports concerning consumer complaints which could have been provided to plaintiffs at a reasonable cost.

oEmail: Plaintiffs sought “[A]ny and all information related to email, including, but not limited to current, backed up and archived programs, accounts, unified messaging, server-based email, web-based email, dial-up email, user names and addresses, email messages, attachments, manual and automated mailing lists, mailing lists, [and] mailing addresses.”

Defendant estimated that 1,500 of its employees had access to the company’s email. The court ruled that, as discussed above, the request was overly broad on its face and denied the motion as to that request.

The court ruled on various other requests, denying some and granting others. In closing, it ordered the parties to confer concerning the production of electronic records consistent with the rulings made, and provide a report to the court as to whether the parties were able to reach any stipulations.