If Requested Documents Are Too Much Trouble, You May Be Off the Hook

Rule 26 is part of the amendments feds made in December 2006 to the Federal Rules of Civil Procedure in order to systemize the discovery process of electronically stored information (ESI).

Like most things in life, Rule 26 brings the good and the bad. So let’s focus on the good first. In part, the rule slightly reduces the onus of e-discovery by saying that informational requests can’t bury a company with burden and cost.

The rule divides ESI into two categories:

  • Information that is reasonably accessible.
  • Information that is not reasonably accessible because of undue burden or cost.

This means that an organization doesn’t necessarily have to produce information in a legal request if it would cause excessive burden or cost. Now, if the entity that requested information pushes discovery of that information, the organization that claimed Rule 26 must prove that accessing the information would cause undue burden or cost.

If the organization successfully proves this, the court can only order discovery for good cause.

Another section of the same rule also makes it clear that organizations involved in federal litigation must have their data organized even before receiving a discovery request. Before that request arrives, a party must present to other parties:

  • Name and contact information of each person likely to have discoverable data.
  • Copies of all discoverable data, or a description that includes location and category of that data.
  • Time frame for extraction of that data.

This portion of Rule 26 makes it clear that organizations must have record-management policies that are well-documented, repeatable and accessible for auditing..

Organizations must get control of their data universe before receiving a discovery request. There is no after-the-fact, only court-ordered sanctions for parties that don’t comply. Preparing a Litigation-Response Plan, or LRP, in advance will assist organizations in avoiding these sanctions and can provide a tactical advantage if the opposition is not prepared.


electronic document discovery