In Mikron Indus., Inc. v. Hurd Windows & Doors, Inc., 2008 WL 1805727 (W.D. Wash. Apr. 21, 2008), the court rejected defendants' claims that searching through their electronically stored information (ESI) would be unduly burdensome and produce cumulative results.  Defendant filed a motion for protective order asking the court to shift the costs of defendants' remaining electronic discovery obligation to plaintiff.  The court denied the motion finding that defendants failed to meet and confer in good faith as required by FRCP 26(c).  The court, considering the matter on the merits, further found that defendants did not meet their burden of demonstrating that the requested information was unduly burdensome or cumulative under Rule 26(b)(2)(B).  "Defendants offer little evidence beyond a cost estimate and conclusory characterizations of their ESI as ‘inaccessible.'"  Nor did the defendants demonstrate any actual hardship beyond that which ordinarily accompanies the discovery process.

The court noted that defendants had not provided the court with details regarding: (1) the number of backup tapes to be searched; (2) the different methods defendants use to store information; (3) defendants' electronic document retention policies prior to retaining and outside consultant; (4) the extent to which the electronic information stored on backup tapes overlaps with ESI stored in more accessible formats; or (5) the extent to which the defendants have searched ESI that remains accessible.