Also known as:not reasonably accessibility · inaccessible ESI · unduly burdensome access
Written by attorneys · grounded in primary & secondary sources — see below
A limitation in civil discovery that excuses a responding party from producing electronically stored information when the sources are identified as imposing undue burden or cost to access. The responding party must demonstrate inaccessibility on a motion to compel or for protective order. Even after that showing the court may still order production if the requesting party establishes good cause under the proportionality factors of Rule 26(b)(2)(C).
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Federal Rules
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How it applies
Common Examples
2
Backup Tapes and Discontinued Platform
Investor Partners sued Apex Capital for securities fraud and sought chat logs and emails stored on backup tapes and a discontinued messaging platform. Apex submitted affidavits showing that restoration would require offsite retrieval, format conversion, and enormous expense that would disrupt regulatory compliance. Because Apex identified the sources as not reasonably accessible, the court denied the motion to compel absent a good-cause showing by the investors.
Legacy Email Metadata Dispute
Plaintiffs sought email metadata from backup tapes that defendants had identified as not reasonably accessible. Defendants supported the objection with evidence of substantial retrieval costs and technical obstacles. The court applied the two-tiered framework, first confirming the inaccessibility showing and then weighing proportionality factors before deciding whether to compel any production.
Aguilar v. Immigration and Customs Enforcement (ICE)255 F.R.D. 350 (S.D.N.Y. 2008)
Common questions
Frequently Asked
4
What must a responding party show to avoid producing ESI under the not-reasonably-accessible rule?+
The responding party must identify the sources and demonstrate that retrieval would impose undue burden or cost, typically through detailed affidavits describing technical obstacles, expense, and time required. Once that showing is made the burden shifts to the requesting party to establish good cause.
Supporting sources
Does a showing of inaccessibility automatically bar all discovery from those sources?+
No. Even after the responding party establishes that the sources are not reasonably accessible, the court may still order discovery if the requesting party shows good cause after considering the Rule 26(b)(2)(C) proportionality factors.
Supporting sources
What kinds of evidence satisfy the undue-burden showing for legacy systems?+
Courts accept particularized affidavits that quantify restoration costs, required specialized equipment or contractors, time needed, and operational disruption, as well as evidence that no active system maintains equivalent data. Conclusory assertions are insufficient.
Supporting sources
How does the court evaluate good cause once inaccessibility is shown?+
The court weighs the importance of the issues, the amount in controversy, the parties' resources, the importance of the discovery to resolving the case, and whether the burden or expense outweighs the likely benefit, along with whether the information is available from more accessible sources.
Supporting sources
Civil ProcedurePretrial procedures · Discovery (including e-discovery), disclosure, and sanctionsUBEFoundational