## Facts

- Jim David Wagoner worked as a security guard for Lewis Gale Medical Center, LLC for about two months before he was terminated.
- Wagoner alleged he had dyslexia and that his dyslexia made it difficult to read and copy the work schedule posted at work.
- Wagoner sued under the Americans with Disabilities Act (ADA), claiming his termination violated the ADA (including theories of disability discrimination, failure to accommodate, and retaliation).
- In discovery, Wagoner sought production of electronically stored information (ESI) maintained by two of his former supervisors.
- Wagoner limited the request to a four-month period and to targeted keyword searches using combinations of his name with terms such as: dyslexia, dyslexic, read, reading, slow, ADA, disabled, disability, security, schedule, copy, and copying.
- Lewis Gale objected that it could not run the requested searches with its own tools and would need a third-party vendor to retrieve and review responsive materials.
- Lewis Gale also represented that its email system did not retain emails for more than three days, increasing the need for outside retrieval efforts.
- The hospital submitted vendor estimates totaling more than $45,000 and argued the cost exceeded Wagoner’s likely monetary recovery given his short employment.
- Lewis Gale argued it had already produced substantial information through other means and asked the court to deny the request or, if ordered, to require Wagoner to pay the vendor costs.
- Wagoner moved to compel the requested ESI search.

## Issues

1. Whether Wagoner’s limited, keyword-based ESI request for supervisors’ materials was relevant and proportional to the needs of the case under Federal Rule of Civil Procedure 26(b)(1) and 26(b)(2)(C).
2. Whether Lewis Gale showed that the requested ESI was “not reasonably accessible because of undue burden or cost” under Rule 26(b)(2)(B).
3. If the search was ordered, whether the court should shift some or all ESI collection and review costs to Wagoner.

## Decision

- The court granted Wagoner’s motion to compel.
- The court ordered Lewis Gale to conduct the requested, time-limited and term-limited ESI search of the identified supervisors’ ESI.
- The court rejected Lewis Gale’s claim that the ESI was not reasonably accessible based on cost and vendor involvement.
- The court declined to shift the vendor and review costs to Wagoner on the record presented and left the expense of compliance with Lewis Gale.

## Legal Principles

- Under Rule 26(b)(2)(B), the party resisting discovery bears the burden to show that requested ESI is not reasonably accessible because of undue burden or cost.
- A showing that ESI retrieval will be expensive, or that a vendor must be retained, does not by itself establish that ESI is “not reasonably accessible” within the meaning of Rule 26(b)(2)(B).
- Proportionality under Rule 26(b)(1) is not determined solely by comparing anticipated discovery expense to expected damages; the court considers multiple factors, including the importance of the requested information to resolving disputed liability issues and which party controls access to the information.
- Narrowing ESI discovery by custodian, date range, and specific search terms supports proportionality and may justify compelling a systematic search even where some documents have already been produced through less structured methods.
- Cost shifting is not automatic in ESI disputes; absent a stronger showing of inaccessibility or unfairness, the producing party generally pays the ordinary costs of responding to discovery.

## Conclusion

In *Wagoner v. Lewis Gale Medical Center, LLC*, the court compelled a constrained ESI search of the plaintiff’s supervisors’ electronically stored materials in an ADA termination case, holding that the hospital had not met its burden to show the ESI was not reasonably accessible due to undue burden or cost and declining to shift the vendor-related expenses to the plaintiff.


Wagoner v. Lewis Gale Medical Center, LLC, 2016 WL 3893135 (2016)