The "I do not have enough resources" defense to an e-discovery request took another big blow this week. It would appear that the courts are losing patience and that people who use this defense are in for a rude awakening. Small companies (SMB) should be especially concerned.
This week, the two sides in Williams v. Taser International, Inc.(N.D. Ga. June 4, 2007) went to the judge because they could not agree on how electronic discovery would be completed. I won't go into the details of the case here, the important part to me is a comment in the footnote that was pointed out on the Electronic Discovery Blog. Taser said that they had limited resources to meet the requests. The court responded.
Taser implies that because it has elected to hire and train only a single technology employee, and because it has chosen to retain only a handful of attorneys to conduct document review, it is somehow relieved from its obligations to timely respond to Plaintiffs’ discovery requests. That is not the case. Rather, the Court expects that Taser will make all reasonable efforts to comply with its discovery Orders including, if necessary, retaining additional IT professionals to search electronic databases and adding additional attorneys to perform document review. (emphasis added)
Taser International has just 243 employees. It is not a large organization and I expect that they do not have a large IT department with spare time on its hands. So, it probably thought it was being responsive and reasonable in its allocation of resources. Maybe Taser believes that it dedicated as many resources as it would to any significant IT project. I don't know. But, it doesn't matter. Even a small company needs to "make all reasonable efforts" including retaining additional employees for electronic discovery. Size is no excuse.
This is consistent with other recent rulings that have compelled response, such as Best Buy Stores v Developers Diversified Realty Corp., where Developers Diversified said that they did not have the resources to find all the required materials. In response, the court ordered them to produce materials from 345 backup tapes in 28 days at an estimated cost of nearly $500,000, not including attorney fees.
It is clear that the "I don't have the resources defense" is not going to hold water anymore. I wonder how long it will take before there will be Contempt of Court charges levied against IT departments?
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