Under Rule 26(b)(2)(B), the Federal Rules of Civil Procedure (FRCP) provide that, “[a] party need not provide discovery of electronically stored information (ESI) from sources that the party identifies as not reasonably accessible because of undue burden or cost.” With the revisions to Rule 26 in December 2015 and the inclusion of principles of proportionality into the analysis of the scope of discovery under Rule 26(b)(1), it was just a matter of time until proportionality considerations would be used as grounds for arguing that a particular data source may not be “reasonably accessible” because of the burden or cost to access.

Highlighting this trend is emerging case law in which the courts interpret the concepts of “not reasonably accessible” and proportionality. In one recent decision, that of Duhigg v. Goodwill Industries , the court analyzes whether certain ESI is discoverable through the lenses of Rule 26(b)(1). In this case, the defendant (Goodwill Industries International Inc.) refused to produce certain emails to the plaintiff, pointing to “the burden and expense to retrieve, format and review the data.” The plaintiff’s requested search terms produced 14,500 hits across 14,119 emails. Factoring in the estimated time to collect and format data for production, and the estimated 235 hours needed to review these emails, Goodwill asserted it would incur a minimum of $45,825 in ESI discovery fees, and argued that the emails sought were not reasonably accessible due to undue burden or cost.

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