Facts
- Hourly production employees at poultry-processing plants sued their employer under the FLSA and Arkansas law, alleging unpaid time for donning, doffing, and sanitizing protective gear and related activities.
- The court previously granted FLSA collective-action certification and denied Rule 23 class certification; merits discovery proceeded in a second phase.
- Plaintiffs served production requests seeking, among other things, emails and documents about donning/doffing compensation practices and payroll and punch-clock procedures.
- During meet-and-confer, plaintiffs sought ESI searches across numerous sources for 43 custodians using approximately 70 search terms over a lengthy period.
- Butterball produced documents including emails, and offered to search active and archived email for 33 custodians using 12 search terms.
- Butterball objected that broader searches were burdensome and duplicative, and argued backup tapes were not reasonably accessible because restoration would require substantial technical steps.
- Plaintiffs moved to compel under Rule 37(a), arguing Butterball’s ESI search was not meaningful and requesting expanded searches and clarification of cost allocation.
Issues
- Whether Rule 26 required Butterball to use broader search terms than the 12 terms it proposed for active and archived email.
- Whether Rule 26 required searching additional custodians, including management personnel and individuals not on Butterball’s email system during the relevant period.
- Whether backup tapes were “not reasonably accessible” under Rule 26(b)(2)(B) such that Butterball need not search them.
- Whether any of the ordered ESI discovery should be subject to cost shifting to plaintiffs.
Decision
- The court granted the motion to compel in part and denied it in part.
- It ordered Butterball to conduct broader ESI searches using three categories of plaintiffs’ proposed search terms (with scope limits as appropriate) for designated custodians’ active and archived email.
- It required expansion of the custodian list to include additional individuals likely to possess relevant ESI, and directed searches of certain non-Butterball email sources used for company business by management who were not on Butterball’s system during the relevant period.
- It denied the request to compel searches of backup tapes, finding them not reasonably accessible and of marginal likely benefit relative to the burden.
- It denied cost shifting and required Butterball to bear the costs of the ESI searches ordered.
Legal Principles
- Discovery extends to nonprivileged matter relevant to any party’s claim or defense and is limited when the burden or expense outweighs the likely benefit. Fed. R. Civ. P. 26(b)(1), 26(b)(2)(C).
- A party resisting ESI discovery on accessibility grounds bears the burden to show the information is not reasonably accessible because of undue burden or cost. Fed. R. Civ. P. 26(b)(2)(B).
- Conclusory assertions that ESI searches are burdensome are insufficient; courts may require specific support (including concrete cost or burden estimates) and may consider sample-search results when assessing proportionality.
- Courts may compel targeted ESI searches using expanded search terms and custodians where the proposed scope is tied to the claims and defenses, while excluding sources unlikely to contain responsive material.
- Backup tapes requiring substantial restoration efforts are a common example of ESI treated as not reasonably accessible; even then, discovery may be ordered only on a showing that the likely benefit justifies the burden.
- Cost shifting is discretionary and generally requires a supported showing that the requested ESI discovery warrants shifting costs; absent such proof, the responding party typically bears its discovery expenses.
Conclusion
The court required expanded, targeted searches of accessible ESI—including certain management-related non-company email sources—because the information was relevant and Butterball did not substantiate claimed burdens, but it refused to require restoration and searching of backup tapes and declined to shift the costs of the ordered searches to plaintiffs.