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Editor Bio
Gregg Mayer is a journalist and lawyer with a keen interest in the rapidly evolving world of e-Discovery. Gregg has published numerous articles, including writing for law journals and the American Bar Association. Gregg served as editor-in-chief of the Mississippi Law Journal. Before practicing law, Gregg worked as a newspaper reporter for six years.
Lacking Ability To Search ESI Does Not Preclude Court Requiring Disclosure
Posted by Gregg Mayer on Friday, March 14th, 2008
Regardless of a company’s in-house capabilities, courts expect parties in litigation to have the ability to retrieve and disclose electronically stored information (”ESI”) when it is needed for litigation.
In Kelly v. Montgomery Lynch & Associates, Inc., a lawsuit in Ohio, James Kelly sued Montgomery Lynch under various debt collection acts.
As part of the lawsuit, Kelly requested that Montgomery Lynch search its ESI and determine how many other individuals received the same letter of collection sent to Kelly.
Montgomery Lynch argued it lacked the technological capabilities for a search of that size:
Defendant claims that the discovery request is unduly burdensome because the Defendant’s filing system is not maintained in a searchable way and the information sought would require “manually searching through hundreds of thousands of records.”
Dismissing this argument, the court concluded in its December 2007 opinion that Montgomery Lynch had to retrieve the ESI regardless of its in-house search capabilities:
Even if [Kelly’s] discovery requests pose a burden on the Defendant, this Court finds that the importance of the issues involved outweighs any claim of inconvenience or cost.
Consequently, Montgomery Lynch would have to pay the added costs for a manual search.
Posted in: Reasonably Accessible Information
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