Beast of (shifting) burden: what constitutes undue burden sufficient to shift ESI production costs under Fla. R. Civ. P. 1.280?

• Author: Weiss, Gregory S.
• Position: Electronically stored information - Special Issue: Technology & the Practice of Law

While most companies (and people) store the majority of their information electronically, discovery of electronically stored information (ESI) has lagged behind reality. The lower cost of storing documents electronically, as well as the widespread use of email and other electronic messaging systems as the primary form of communication, has made it so that litigants have amassed an immense amount of ESI. As a result, discovery expenses have soared. Like other discovery requests, the general presumption is that the responding party bears the costs of production. However, Florida law permits shifting the cost of production from the responding party to the requesting party, in the ESI context, if the responding party can show that retrieving the information would be overly burdensome. (1) No Florida state court case specifically addresses or defines the standard for "burdensomeness" for fee-shifting under the rule (2); therefore, this article reviews the genesis of the Florida rule, an analogous federal rule, and the cases interpreting the federal rule.

Fla. R. Civ. P. 1.280

In 2012, the Florida Supreme Court amended Fla. R. Civ. P. 1.280 (General Provisions Governing Discovery) to include [section]1.280(d), which addresses discovery of ESI. This provision, titled "Limitations on Discovery of Electronically Stored Information" provides, in pertinent part, that a "person may object to discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of burden or cost." (3) If the responding party can show that the retrieval of the requested information would be unduly burdensome or expensive, "the court may specify conditions of the discovery, including ordering that some or all of the expenses incurred by the person from whom the discovery is sought be paid by the party seeking the discovery." (4) In the three years since this rule has been in effect, no reported decision by a Florida state court has interpreted ESI discovery cost-sharing or shifting; however, the commentary to the rule and the analogous federal rule provide valuable insight into ESI discovery cost shifting. (5)

Commentary to Fla. R. Civ. P. 1.280

Courts are generally granted broad discretion when ruling on discovery issues. (6) The committee notes to the 2012 amendment to Rule 1.280 indicate that "the court should balance the costs and burden of the requested discovery, including the potential for disruption of operations or corruption of the electronic devices ... against the relevance of the information and the requesting party's need for that information." (7)

The court may attempt to ascertain what information is included in the sources by directing the parties to provide samples of the requested discovery. (8) Discovery samples can assist the court's determination of what costs and burdens are associated with retrieving, reviewing, and producing the information. In addition, the samples may allow the court to establish whether the requested information relates to the specific issues involved in the litigation. This comment appears to incorporate the "marginal utility" standard from the cases interpreting the federal rule, which are discussed below. In one way or another, all fee-shifting tests consider the total cost of production. Therefore, before a court can decide whether to grant a motion to shift costs, it must determine what the actual costs of production are and analyze the specificity of the requested information; sampling seems to be the best way to accomplish this task.

The Analogous Federal Rule

Fed. R. Civ. P. 26 is substantially similar to Rule 1.280. The following steps describe how a party can meet the burdensomeness test, under the federal rule, and shift the cost of production.

Step 1: Show Undue Burden or Expense in the Discovery Request

Rule 26(b)(2)(B) allows a court to grant a protective order from an ESI discovery request if the responding party can show that the requested information is not reasonably accessible because of undue burden or cost. (9) Good cause exists when "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the...