Why am I discussing a case regarding eDiscovery objections – that is nearly six years old? Read on to find out why I like this case!
The case is Solo v. UPS Co., No. 14-12719 (E.D. Mich. Jan. 10, 2017) and it was a putative consumer class action case dealing with alleged overcharging for shipments. In an interrogatory, the plaintiffs requested the defendant to provide detailed information for packages with a declared value of $300 or more over the alleged overcharging period, which could extend as far back as 2008 from the end date of December 29, 2013.
The defendant objected, but they didn’t do so with a boilerplate objection like “overly broad and unduly burdensome”. Instead, the defendant provided specifics, contending that providing the package-specific information requested would be “excessively burdensome” in terms of both time, manpower, and costs because the data was maintained in a “live” format for a limited period of time and then archived on backup tapes (the defendant provided an estimate of at least $120,000 just to restore the backup tapes).
Instead, the defendant provided an estimate of the number of packages with declared value over $300 that were shipped during the period June 30, 2013 to December 29, 2013 – this time period was chosen because its contract terms state that a customer must give notice of a billing dispute within 180 days, or the issue is waived.
In accepting the defendant’s response to the plaintiff’s request, Michigan Magistrate Judge R. Steven Whalen stated: “I am persuaded that UPS has carried its burden of showing that producing package-specific information going as far back as 2008 would be extraordinarily burdensome, particularly at this stage of the proceedings. Given the scope of UPS’s business operations and the exigencies of its proprietary billing system, there is a valid business reason for maintaining ‘live’ data for a limited period of time and storing older data on backup tapes.” Judge Whalen also agreed with the defendant that if it prevailed on the 180-day limit issue, “the most likely period that will be found relevant will be the six-month time frame from June 30, 2013 to December 29, 2013.”
Why do I like this case? Because: 1) the defendant provided specifics in their objection (including estimated costs) instead of issuing a boilerplate objection, and 2) the defendant offered an alternative approach to respond to the discovery request (and a reason for limiting the scope to the 180-days proposed).
FRCP Rule 34(b)(2)(B) & 34(b)(2)(C) (available here) address the rules in effect since 2015 regarding discovery objections (emphasis added):
(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.
(C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.
The defendant did so here, which is why I like this case: it’s a terrific example of how objections to discovery requests should be made. So, why am I discussing a case regarding eDiscovery objections – that is nearly six years old? Because I’m conducting a CLE presentation today and discovery objections is one of the topics! I’ll conduct that presentation in a webinar coming soon, so look for that!
So, what do you think? I discussed a case regarding eDiscovery objections, do you have any other good examples? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.
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