Federal Judge in Virginia Rejects Abbott Laboratories' Argument that Producing E-mails Unduly Burdensome
Mississippi litigation attorneys often find themselves in discovery disputes involving e-mails and other electronic data. It is common for the party resisting discovery to object to producing e-mails because it is allegedly unduly burdensome (too expensive).
Last month a federal judge in Virginia rejected Abbott Laboratories’ argument that production costs of at least $50,000 made producing e-mails unduly burdensome. Here is a link to the Court’s Order. The Order received a good bit of attention in the national media.
I once argued a similar issue before one of the federal magistrate judges in Mississippi. The judge ordered production of the e-mails and commented to the objecting attorney that he often hears these Chicken Little sky is falling arguments, but the objecting party always manages to produce the documents. Unfortunately, not all judges understand that the resisting parties are more likely concerned about what is in the e-mails.
I suspect that the real reason that companies work so hard to resist producing e-mails is that e-mails often contain smoking-gun type communications. This is probably because people often fire off an email without thinking about whether they really want to put what they are saying in writing. If judges would consistently order the production of e-mails, then cases would be easier to settle, thus reducing the court’s docket.
Finally, I believe that companies exaggerate the cost of producing e-mails. For companies with IT departments, most of the work is done in-house. And while it does carry an expense, it’s not what the company claims because the company has to pay its employees whether they are working on email production, working on something else, or goofing off at work.
The court, to it's credit, picked up on the manufactured grounds for the undue expense objection. Using available software, Abbott could have set up an email records system that would have enabled the company to retrieve the emails for far less cost. They almost certainly have a retrieval system for archived paper records. The money quote from the court's decision is: "If retrieving the e-mails the government requests is as difficult as Abbott conveys, then the fault lies not so much with an overly broad government request as it does with Abbott's policy or practice or retaining documents...in a format that shrouds them in practical obscurity." The subpeona was not governed by the federal rules of civil procedure, but I concur that the result probably would have been the same had they applied. What do you think would have been the reult if the Mississippi rule on e-discovery had been the basis for decision?
I think that with this judge, the result would have been the same under the Mississippi rule. My interpretation of the Mississippi rule is that it gives trial judges a lot of discretion in ruling on e-discovery issues.