U.S. District Court Judge Anne Montgomery has ruled on an electronic discovery issue in a putative class action about materials used in brass plumbing fittings and alleged related property damage. (In re: Zurn Pex Plumbing Products Litigation, MDL No. 08-1958)
Apparently the defendant successfully argued, initially, that electronic discovery would be onerous and that it should be allowed to produce responsive documents on class certification issues in hard copy (paper) form. Further on in discovery, however, plaintiffs wanted to engage in electronic discovery — giving the defendant 26 search terms and having the defendant run searches of particular employees or former employees emails and files on shared servers. Defendant Zurn “balked.”
The Court was mindful of defendant’s argument as to burden. The request would cover 361 gigabytes of data, or “nearly 27 million pages of documents.” Defendant estimated the time for search to be 17 weeks at a cost of $1.15 million. (Query: how much longer will courts and lawyers assess the volume and burden of ESI by converting it to paper pages? Isn’t the whole point of ESI that it is not paper, that electronic files other than word processing files and PDFs (for example, Excel files) are unlike paper documents, that ESI is often electronically searchable, that it is storable at very lost cost (relative to paper) and almost instantaneously reproducible — so that assessing its volume and burden by converting it into this ungainly and inefficient medium is perhaps beside the point?)
“The affidavit of [legal counsel,] an attorney and not an expert on document search and retrieval, is not compelling evidence that the search will be as burdensome as [defendant] avers,” the Court held. On the other hand, mindful of the burden, the Court reduced plaintiff’s 26 search terms to 14, allowing the parties to swap out the 14 terms if they wish, and allowing defendant to renew its objection “by presenting the Court with specific information including evidence from computer experts on applying search terms, the number of documents identified, and the cost and time burdens of vetting documents.”