Corporate & Business/Jan 13, 2015

The Importance of Properly Handling Discovery Requests for Electronically Stored Information

Electronically stored information (“ESI”), also known as electronic data, includes everything from a spreadsheet created and stored on a company’s hard drive to the emails sent between company employees and customers. Under both federal and state rules, ESI, like any other form of information, is considered “discoverable” and must be preserved when litigation is pending or anticipated. For this reason, ESI is a large component in many business litigation matters.

The Michigan Court Rules specifically address ESI discovery. MCR 2.302(B)(5) provides that a party has the same obligation to preserve ESI as it does all other types of information. MCR 2.310(C), which governs requests for production of documents, provides that a party may specify the form in which ESI should be produced. If the requesting party fails to specify a form, then the responding party must produce the ESI in the form that the party “ordinarily maintains it” or in a “reasonably usable” format. However, if a party can show that the ESI is not “reasonably accessible because of undue burden or cost,” MCR 2.302(B)(6) provides that the party is not obligated to produce it. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide ESI lost as a result of the routine, good-faith operation of an electronic information system.

In Norman Yatooma & Assoc, PC v White, unpublished opinion per curiam of the Court of Appeals, issued November 25, 2014 (Docket No. 318068), the Court imposed the extreme discovery sanction of dismissing a collection case against a customer because the plaintiff refused to produce emails alleged to relate to “improper billing practices” that were requested by the former customer. At five separate discovery hearings that took place over a number of months, the trial judge repeatedly warned the plaintiff about its refusal to produce the requested emails. Yet, until the last hearing, the plaintiff failed to introduce any computer specialist opinion about cost or the burdens relative to email retrieval.

This case demonstrates the importance of retaining computer experts at the earliest opportunity when dealing with ESI discovery requests. An expert can properly frame the format of ESI requests or, more importantly, properly support a party’s opposition to ESI requests.

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