Vol. 1/Case 2,

Wagoner v. Lewis Gale Med. Ctr., LLC, Civil No. 7:15-CV-570, 2016 U.S. Dist. LEXIS 91323 (W.D.

A recent federal decision from the Western District of Virginia, Roanoke Division, may shed some needed light on how courts will address proportionality under revised Rule 26 of the Federal Rules of Civil Procedure (“FRCP 26”; FRCP revisions adopted December 1, 2015). Rule 26 has been modified in several ways, notably the salient transfer of language pertaining to proportionality in discovery from 26(b)(2)(C)(iii) to 26(b)(1). This “front and center” placement of proportionality in Rule 26 has led some litigants and attorneys to wonder how proportionality and “cost shifting” disputes concerning electronically stored information (“ESI”) would be affected. The current case in part addresses these questions.

In this case, Jim Wagoner sued Lewis Gale Medical Center, LLC (“Lewis Gale”), which had formerly employed Wagoner as a security guard, for terminating him in violation of the Americans with Disabilities Act (“ADA”). His claims asserted that he was dyslexic and that the defendant, Lewis Gale, had not accommodated him as required under the ADA.

In seeking discovery, Wagoner requested the production of documents from his two supervisors, limiting the request to a four-month period and to the following search terms: “Jim OR Wagoner AND dyslexia OR dyslexic OR read OR reading OR slow OR ADA OR disabled OR disability OR security OR schedule OR copy OR copying.” Wagoner v. Lewis Gale Med. Ctr., LLC, Civil No. 7:15-CV-570, 2016 U.S. Dist. LEXIS 91323, *2 (W.D. Va. July 14, 2016).

Lewis Gale contended that it did not have the capabilities to perform the search and that the total cost for the discovery, $45,570, would far exceed any potential damages award to Wagoner, who had been employed for only two months. The defendant, Lewis Gale, therefore contended that the discovery sought was disproportional, particularly since a considerable quantity of “e-mails gathered manually from the computers of key custodians” had already been produced, or, in the alternative, that the plaintiff, Wagoner, should be required to cover the related costs. Id. at *3.

Turning to FRCP 26 for its proportionality analysis, the Court first considered the threshold question of whether the information sought was “relevant” under the recent revision to FRCP 26. Per FRCP 26(b)(1) a party “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. . . .” (emphasis added). On this point, the Court concluded that the defendant had “largely conceded at the hearing that Wagoner’s request was relevant, arguing only that the keyword searches were too broad.” Wagoner at *4.

Next, to determine whether Wagoner’s discovery request placed an “undue burden or cost” on Lewis Gale, the Court looked to the test laid out in the classic decision Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) to determine the information’s accessibility. The Court in Zubulake held that “[i]nformation deemed ‘accessible’ is stored in readily usable format,” while “‘[i]naccessible’ data . . . is not readily usable.” Wagoner at *8 (citing Zubulake at 318-319). In this instance, the information was readily accessible, as it did not need to “be restored, defragmented or reconstructed.” Id. The Court noted that the expense for retrieving the information is not a proportionality consideration where the producing party failed to preserve e-mails in a “readily searchable format, making it costly to produce relevant e-mails when faced with a lawsuit.” Id. at *9. Additionally, expense alone is not an overriding factor as to whether the discovery demanded is disproportionate, as “[p]roportionality consists of more than whether the particular discovery method is expensive.” Id. at *9-10.

The Court thus dismissed the defendant’s “undue burden” argument grounded in the expense of locating the requested information. Finally, as Lewis Gale had no other argument to justify its claim of disproportionality, and had proposed no alternative method for obtaining the requested information, the Court determined that the request was “proportional to the needs of the case” and, since the ESI was readily accessible, “cost-shifting [was] not appropriate.” Id. at *10.

Notably, the Court in its proportionality analysis placed no emphasis on the changes to FRCP Rule 26. Thus, it would seem from the Wagoner case that where a party receives a properly tailored discovery demand for relevant, “accessible” data that cannot be obtained through less expensive means, and absent other “burdensome” factors, that party will be held responsible for bearing the costs of the discovery.