Weighing the Burden, Court Excuses Plaintiff from Reviewing Millions of Pages from Unallocated Space
“This case highlights the dangers of carelessness and inattention in e-discovery.” In this case, the court affirmed the order of the Magistrate Judge which excused plaintiff from the obligation of reviewing and producing millions of pages of documents recovered from unallocated space files in light of the extreme burden and cost of such an undertaking.
Pursuant to a stipulation between the parties, defendants hired an expert to conduct a keyword search of plaintiff’s computer network, servers, and related storage devices. Per the court’s order, plaintiff was to produce the results of the examination. There were more than 50 search terms, and many were also run in French. Moreover, “the search was not limited to targeted document custodians or relevant time periods. Indeed, the search was not even limited to active files.” The search was instead run “across all data on the computer system” including unallocated space. Unsurprisingly, the results were voluminous, returning 64,382,929 hits in unallocated space alone which represented approximately 95 million pages of data.
Following a telephonic hearing, the Magistrate Judge entered an order permitting plaintiff to withhold data found in the unallocated space and allowing defendants to seek reimbursement for the costs incurred in extracting and searching that data. Among other things, the order was based on findings that the burden of the review would outweigh any potential benefit and that the likelihood of finding relevant, admissible evidence was “minimal.”