Yesterday, Judge Burke ordered a plaintiff to collect documents from an additional custodian beyond the limit agreed to by the parties. But he also gave the plaintiff a road map for how they might have won with a little extra effort.
Judge Burke acknowledged that "the parties are not large companies, and that cost and burden were a factor in the parties' agreement to [a] seven-custodian limit in the first place."
But Plaintiff could have provided the Court with a record ... to help the Court conclude that the collection, search, review and production of [the custodian's] documents would be unduly burdensome or costly, or that it would be disproportionate to either the amount in controversy or the parties' resources or some other relevant metric. If Plaintiff had, the decision may have gone the other way here.
Instead, the plaintiff just said that producing documents from another custodian would be "an 'incredible burden[,]'" with no record for the judge to consider.
If a motion to compel will really result in an "incredible burden," take the extra time to explain it in as much detail as possible. Otherwise you might find yourself losing a motion to compel that you might have won.
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