United States v. Univ. Nebraska at Kearney, District Court Denies Government Request for ESI Production Finding It “Not the Best or Most Economical Method” of Discovering the Information Sought.

In this district court case, the judge denied the United States’ request for the production of ESI, finding that it was “neither the only nor the best and most economical discovery method for obtaining the information the government” sought.

The United States brought a suit against the University of Kansas at Kearney (“UNK”) on behalf of individuals who alleged violations of the Fair Housing Act. The United States claimed that UNK prohibited or hindered students from living with emotional assistance animals in University housing even though these animals were accommodations needed for the requesting students’ mental disabilities. The discrimination allegations were limited to housing accommodations involving emotional assistance animals and did not address discrimination concerning access to academic programming, financial aid, employment, and health care or university facilities.

A Stipulation and Order regarding discovery including ESI required the parties to confer about search terms and production format. After several conferences about ESI, the government sent defendants a list of proposed terms, electronic databases and custodians to be searched. The defendants produced hard copy documents but did not produce electronic files. The government produced responsive documents including ESI.

After receiving a search term list from the government, Defendants produced a frequency list and notified the government that it they would not proceed with electronic discovery. After settlement talks failed, a new discovery schedule was set. Although the parties had additional discussions regarding ESI, the defendants objected to the government’s search parameters as overly broad and burdensome, asserting that the cost of collecting, reviewing and producing the ESI would approach a million dollars. Defendants argued further that their initial response to the government they provided “all documents related to requests for reasonable accommodation in University housing.”

Although the government subsequently narrowed the search terms it was estimated they would result in over 50,000 responsive documents with an associated cost of over $150,000 to collect, review and produce. Defending the broad request, the government argued that a small group of UNK officials made all the accommodation decisions and with respect to their intent to discriminate and “any distinction between the housing and non-housing contest…is an artificial one.”

UNK proposed limiting the ESI requests to “housing” or “residential” which would result in 10,997 documents. Claiming that the terms were too narrow, the government proposed that the defendants disclose all the documents subject to a clawback provision. The defendants argued that disclosure with a clawback agreement would violate the Family Educational Rights and Privacy Act. The government filed a motion to compel and UNK requested that the government bear the cost of any further discovery. In its analysis addressing the motion, the court noted that discovery is limited by the “proportionality or balancing test set” forth in Federal Rule 26(b)(2)(C)(iii) which it found “highly useful” when addressing the scope and cost of ESI discovery.

The court was unconvinced by the government’s argument that courts have allowed discovery of all evidence that would lead to a showing of discriminatory conduct finding the discovery proposed by the government overly broad and inconsistent with a speedy and inexpensive resolution of the case. The court found that the information already produced by UNK addressed the primary elements of the government’s claims and found that that the cost associated with the ESI requested by the government would outweigh what could be gained by requiring the review and production of the information.

The court rejected the government’s request for an order requiring the UNK produce ESI without review of the disclosure subject to a clawback provision, reasoning that the requested ESI would impact the privacy of all persons who might have raised discrimination concerns or requested accommodations. The found noted that the government’s reach cannot extend that far under civil discovery without giving all affected non-parties the opportunity to consent or object to disclosure of their information.

Finally, in addressing the government’s claims that the expansive ESI search was necessary to identify a complete set of documents, the court stressed that search of ESI is only one discovery tool. The court stated that ESI “should not be deemed a replacement for interrogatories, productions requests, request for admissions and depositions, and should not be ordered solely as a method to confirm the opposing party’s discovery is complete.” Despite the arguments of the government for the ESI production, the court found that absent evidence that UNK hid or destroyed information the court was convinced that ESI was “neither the only nor the best and most economical method for obtaining the information the government seeks.”

United States v. Univ. Nebraska at Kearney, No. 4:11CV3209, 2014 WL 4215381 (D. Neb. Aug. 25, 2014)

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