Crane on Law by James Crane

In Parkdale Am., L.L.C. v. Travelers Cas. and Sur. Co. of Am., Inc. (2007 WL 4165247), the Western District Court in North Carolina decided that relevant emails in LotusNotes format should be produced despite Plaintiffs' objections that it would cost $20,000 to convert them to a searchable format.

 The Court found that because the emails were from a key custodian, and the amount at stake dwarfed the cost of the discovery burden, Plaintiffs' objection based on FRCP's "not reasonably accessible" provision was overruled.

The Court determined that the emails were relevant to the issues and stated:

"Nor have the Plaintiffs met their burden of establishing that these emails are 'not reasonably accessible because of undue burden or cost,' particularly in light of the Court's ability to apportion costs between the parties in appropriate cases.  (citation omitted)

According to the Plaintiffs' briefs, the disputed emails are presently in LotusNotes format, rather than in a less accessible backup media.  Although the Plaintiffs did not offer during the hearing a specific cost projection for converting and searching the subject emails, they contended in their in their briefs that the cost of producing Mr. Smeak's emails was no more than $20,000, a fraction of the expense at issue in Zubulake where the cost of producing 5 sample disks alone was $19,000.  Taking into account the factors listed in Fed. R. Civ. 269b)(2)(C)(iii), including the amount in controversy ($3 million policy limit...), the parties' apparent resources, and the importance of the proposed discovery in resolving critical factual issues, the Plaintiffs have not articulated a sufficient basis to relieve them of the obligation ot produce these emails. 

The Court also raised the possibility of apportioning the costs and urged the parties to make a good faith effort to do so.