In Spieker, et. al.  v. Quest Cherokee, LLC, 2009 U.S. Dist. LEXIS 62073 (D. Kan. July 21, 2009), U.S. Magistrate Judge Karen M. Humphreys granted plaintiffs' renewed motion to compel the production of electronically stored information ("ESI") and rejected defendant's argument that ESI was not reasonably accessible due to undue cost or burden.

Plaintiffs allege that defendant failed to pay oil and gas royalties on certain mineral interests in land owned by plaintiffs.  Plaintiffs' initial motion was denied without prejudice because (1) defendant's estimated cost to comply was as much as $375,000 and plaintiffs failed to explain how the ESI discovery was relevant to class certification. Plaintiffs renewed their motion and the court was highly skeptical of defendant's high dollar amount noting that nearly $250,000 was for document review.

Plaintiffs suggest that defendant could minimize its costs by turning over a copy of all of the defendant's ESI in native format with an agreement under FRCP 26(b)(5)(B) and FRE 502 that defendant has not waived the attorney client privilege.  The court disagreed since Rule 502(b) only preserves the privilege when "the holder of the privilege or protection took reasonable steps to prevent disclosure of the privileged material.  Simply turning over all ESI materials does not show that a party has taken the reasonable steps to prevent disclosure of its privileged materials."

The court was also not convinced that the defendant needed to pay a vendor to run search terms given the capabilities of its internal IT staff and recently upgraded computer system. In granting the motion to compel, the court rejected defendant's undue burden argument holding that defendant's cost estimates were "greatly exaggerated in an attempt to fall within the parameters of Rule 26(b)(2)(B)."