By: Tara Miller

Note: Case is not in casebook

Plaintiff(s): Hugo Spieker◦ P’s are current and/or former owners of mineral interests in lands burdened

by oil and gas leases owned by defendant ◦ Plaintiffs allege that defendant has failed to pay the proper amount of

royalties ◦ In addition to their individual claims, plaintiffs seek to represent a class

consisting of owners of mineral and/or royalty interests in the Kansas portion of the Cherokee Basin burdened by leases owned by defendant

Defendant: Quest Cherokee, LLC Quest apparently owns approximately 2,500 oil and gas leases in the

Kansas portion of the Cherokee Basin and operates approximately 2,000 coalbed methane gas wells on those leases.

P’s allege that D has failed to pay the proper amount of royalties◦ P’s seek to represent a class consisting of owners of mineral and/or royalty interests

P served D with four separate sets of document production requests. ◦ Defendant made materials available for inspection and copying but objected to the production of

certain electronically stored information (“ESI”). ◦ D argued undue burden (citing cost including production, collection, processing, reviewing and copying

costs,

P’s motion to compel the production of electronically stored information. ◦ Defendant opposes the motion, arguing that (1) the cost is unduly burdensome and (2) the

ESI is duplicative of information otherwise being produced. ◦ In the alternative, D asks that the discovery requests be narrowed and/or that the cost of

discovery be shifted to plaintiffs. Parties engaged in discussions concerning the search terms and made

minor modifications ◦ Kroll (reputable 3rd party vendor) applied the search terms and the results were “unmanageable “

Then D suggested additional revisions Resulted in 32 gigabytes of data “comprised of 31,000 documents and 1,400,000 pages.”

Kroll's charge to process this volume of ESI for review is approximately $82,500◦ COSTS: Other costs: a “privilege and relevance” review by counsel for this volume of data will

cost at least $250,000, raising the total production cost to approximately $375,000. P declined D’s request to refine the search terms and defendant

refused to incur the estimated production cost of $375,000. ◦ Because of this impasse, plaintiffs move to compel production of the requested email

information.

Fed.R.Civ.P. 23(c)(1)(A):◦ “At an early practicable time after a person sues or is sued as a class

representative, the court must determine by order whether to certify the action as a class action.”

◦ Importance: A formal scheduling order has not been entered in this case. However, by agreement of the parties, discovery is being conducted in two phases (class certification phase and liability/damage phase). The parties are currently engaged in the first phase.

Fed.R.Civ.P. 26(b)(2)(B) ◦ D argues should not be compelled to produce the requested email data because it

is “not reasonably accessible” ◦ A party need not provide discovery of ESI from sources that the party identifies as

not reasonably accessible because of undue burden or cost. ◦ Burden: the party from whom discovery is sought must show that the

information is not reasonably accessible because of undue burden or cost.

◦ Burden Shift: If showing is made, court may nonetheless order discovery if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for discovery.

Fed. R. Evidence 502◦ Recently enacted to reduce the costs of exhaustive privilege reviews of ESI.◦ The parties need to address Rule 502 in any future production and cost

discussions.

ISSUE: Should D be compelled to produce email information, at this stage of the litigation given the cost?◦ Arguments:

D argues (1) class action has NOT been certified and the amount of the named plaintiffs’ claim ($100,000) does not justify the cost of production. (2) P’s have not shown that the information requested is relevant to the issue of class certification P argues that this is a “putative class action” (in excess of $5 million)

Court says: ◦ (1) Class certification: Plaintiffs are entitled to conduct some discovery to

support their request for class certification. Discovery expenses are NOT evaluated by reference solely to individual named

plaintiff claim◦ (2) P has not explained how the disputed ESI discovery is relevant to

the issue of class certification. Without explanation by P of the relevance of the ESI to the issue of class

certification, the court will not require defendant to incur discovery expenses in excess of $82,000.

Reasoning: P’s explanation will allow court to better evaluate issues such as (1) whether the discovery is duplicative and/or (2) available through less expensive sources.

◦ Search Terms: D argues P’s search terms were “not specific enough” Court rejects because D was in the better position to develop the most appropriate list

of search terms capable of producing the requested documents ◦ “Not reasonably Accessible” (Fed.R.Civ.P. 26(b)(2)(B))

D argues that named plaintiffs claims are $100,000 or less and spending $82,500 to produce [based on current terms] is unduly burdensome, therefore, “not reasonably accessible”

Court rejects because P entitled to conduct SOME discovery concerning class certification issue.

◦ Cumulative Discovery D argues “largely cumulative of vast amounts of other discovery” already produced Court said its unclear whether the requested ESI is cumulative or not and this issue

should be further refined by defendant if plaintiffs renew their motion to compel. Burden D wrongly asserts that P must prove ESI is not cumulative- Burden is on D as

the party opposing◦ Cost Estimates

Costs- associated with gathering, analyzing, and producing the email messages.

Internal Search: D hired 3rd party to conduct search and P argues that there is no reason apparent reason D is unable to search email messages on his own

D in process of software update and Court says parties should confer AFTER update Court says need more information

◦ FRE 502: enacted "to reduce the costs of exhaustive privilege reviews of ESI."

Plaintiffs' motion to compel denied without prejudice pending a renewed motion explaining the relevance of the discovery to class certification. Search terms: Producing party (D) was in better position to

develop the most appropriate list of search terms “Not reasonably accessible” Does burden outweigh benefit

Costs considered are not solely individual named plaintiffs claim Plaintiffs are entitled to conduct some discovery to support

their request for class certification Cumulative Discovery: Burden is on D to prove Cost Estimates: Parties should confer about Internal Search

capability (including software).

Why should a court require the Plaintiff to explain how the ESI discovery is related to the issue of class certification?

What are possible concerns with requiring the producing party to conduct a search internally (self-collection)?