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55. Which analysis should the court use in deciding the employer's objection?
An employee brought suit against her employer in federal court for a federal employment discrimination suit. In discovery, the employee requested all documents, including electronically stored information («ESI»), related to the employee's performance of her job duties over the past five years. The employer objected to this request and sought a protective order on the ground that much of the ESI was in an unreadable form and would be unduly expensive to restore to a readable form. The employer further argued that the court should order the employee to pay three-quarters of the cost of restoring the ESI to readable form. The employee argued that there was good cause to require the employer to produce the ESI in an accessible form and that the court should order the employer to do so entirely at its own expense.
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This is therefore the correct analysis for the court to use in this case, when deciding on the employer's objection and demand that the court order a majority of the costs of producing the ESI upon the employee.
B is incorrect. This is an incorrect statement of the law. The FRCP do provide for the discovery of ESI.
C is incorrect. This is also an incorrect statement of the law. The FRCP do permit a judge to allocate to the discovery-seeking party a portion of the costs of the restoration of the ESI to readable form.
D is incorrect. The proper analysis for the court to undertake is a factor-based standard, and the judge should not speculate beyond those factors.