Also known as:not reasonably accessible · inaccessible ESI · unduly burdensome data
Written by attorneys · grounded in primary & secondary sources — see below
Electronically stored information residing in sources that a responding party identifies as inaccessible because of undue burden or cost. A responding party need not produce such information unless the requesting party shows good cause after the responding party demonstrates the inaccessibility.
Sources & Authorities
How it applies
Common Examples
2
Backup Tapes and Legacy Platform
Investor Partners sued Apex Capital for securities fraud and sought chat logs and archived emails stored on discontinued messaging software and offsite backup tapes. Apex submitted affidavits showing that restoration would require extraordinary expense and would disrupt regulatory compliance systems. Apex identified the sources as not reasonably accessible. The court denied the motion to compel because the investors failed to show good cause outweighing the demonstrated burden.
Obsolete Magnetic Tapes
CBT Flint Partners sought production of data stored on legacy tapes that Return Path identified as requiring specialized equipment and months of work at enormous cost. Return Path demonstrated that the sources were not reasonably accessible because of undue burden. The court applied the two-step framework and refused to order production absent a showing of good cause by the requesting party.
Put it into practice
Test Yourself
10
Practice Questions5
· 2 primary sources
Select any source to read its text and confirm it supports the definition.
What must a responding party show to avoid producing electronically stored information under the not reasonably accessible rule?+
The responding party must identify the sources and demonstrate through particularized evidence such as affidavits that retrieval would impose undue burden or cost. Once that showing is made the requesting party bears the burden to establish good cause.
Supporting sources
Does a showing of not reasonably accessible data automatically bar all discovery from those sources?+
No. The court may still order discovery if the requesting party demonstrates good cause after considering proportionality factors under Rule 26(b)(2)(C). The court may also impose conditions such as cost shifting.
Supporting sources
What evidence suffices to establish that electronically stored information is not reasonably accessible?+
Detailed affidavits describing the technical obstacles, estimated costs, time required, and operational disruption are sufficient. Courts have accepted evidence of obsolete hardware, rare equipment needs, and diversion of personnel from core business functions.
Supporting sources
Professional ResponsibilityLitigation and other forms of advocacy · Expediting litigationMPREIntermediate