Reasonable Particularity in Requesting ESI

http://ow.ly/6huox

Article on bowtie law blog, by Joshua Gilliland, Esq.

This article discusses the case of Doubt v. NCR Corp., 2011 U.S. Dist. LEXIS 95518, 11-12 (N.D. Cal. Aug. 22, 2011). In this case both the Magistrate Judge, and later the District Court, held that a plaintiff's discovery request was overly broad, and denied the request.

The requests asked for "each and every document" in several instances, the case was based on age discrimination. As the the Mr. Gilliland, the author of the article stated "A discovery request must both be relevant to a party’s claims or defenses and “reasonably calculated to lead to admissible evidence.” Doubt, at *11, citing Federal Rule of Civil Procedure Rule 26(b).

Federal Rule of Civil Procedure Rule 34 states that a discovery “must describe with reasonable particularity each item or category of items.”Doubt, at *11, citing Federal Rule of Civil Procedure Rule 34."

The author describes that the court felt that the plaintiff's request was too burdensome, and would require the defendant to search through too many documents that were unrelated to the facts of the case.  The article suggests the following, as a means of improving discovery requests:

 "For both a requesting or producing party, technology such as “early case [data] assessment” can be extremely helpful in identifying relevant discovery. However, ECDA cannot limit ESI for identification without first determining what is being searched with “reasonable particularity.”

In identifying ESI with “reasonable particularity” at a minimum includes the type of ESI (email, Excel, text message), the author of the ESI (Email Sender or who drafted a file), Recipients of messages, date ranges and keywords designed to identify ESI relevant to a party’s claims or defenses."

This case serves as a good example for the need to draft properly tailored discovery requests, and provides some insight into how to improve skills in this area.