Under the "two-tier rule" established under FRCP 26(b)(2)(B), parties need not provide discovery of ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost; on motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. The following cases represent a selection of decisions following the 2006 amendments to the Federal Rules of Civil Procedure:

• Ameriwood Industries v. Liberman, 2007 WL 496716 (E.D. Mo. Feb. 13, 2007).
• Auto Club Family Ins. Co. v. Ahner, 2007 U.S. Dist. LEXIS 63809 (E.D. La. Aug. 29, 2007).
• Best Buy Stores, L.P. v. Developers Diversified Realty Corporation, 2007 U.S. Dist. LEXIS 7580 (D. Minn. Feb. 1, 2007).
• Disability Rights Council of Greater Washington, et al., v. Washington Metropolitan Transit Authority, et al., 2007 U.S. Dist. LEXIS 39605 (D.D.C. June 1, 2007)
• Guy Chemical Co. Inc. v. Romaco AG, et al. 2007 WL 1521468 (N.D. Ind. May 22, 2007).
• Haka v. Lincoln County, 2007 U.S. Dist. LEXIS 64480 (W.D. Wis. Aug. 29, 2007)
• In re Vecco Instruments. Inc. Securities Litigation, 2007 WL 983987 (S.D. N.Y. April 2, 2007).
• Knifesource LLC v. Wachovia Bank, N.A., 2007 U.S. Dist. LEXIS 58829 (D.S.C. Aug. 10, 2007).
• Peskoff v. Faber, 2007 WL 530096 (D.D.C. Feb. 21, 2007).
• Pipefitters Local No. 636 Pension Fund v. Mercer Human Res. Consulting, Inc., 2007 WL 2080365 (E.D. Mich. July 19, 2007).
• Thielen v. Buongiorno, Case No. 06-16 (W.D. Mich. Feb. 8, 2007).
• W.E. Aubuchon Co. v. Benefirst, LLC, 2007 WL 1765610 (D. Mass. 2007).

How Fios can Help

Fios is experienced in helping clients understand where electronically stored information ("ESI") exists within their organizations, how readily accessible the data is for discovery, and where the areas of greatest potential undue burden or cost exist. Fios can help clients support their arguments for inaccessibility due to undue burden or cost through a better understand of their content, the relative burdens of production, and early evidence assessments.

Click here to learn more about our services.