Angie’s List Receives a Negative Review: Court Compels Production of ESI
Williams v. Angie's List, Inc., 2017 U.S. Dist. LEXIS 54270 (S.D. Ind. Apr. 10, 2017) In this class-action employment case, the plaintiffs requested that the court compel the defendant to produce the plaintiffs’ background work activity that was recorded and housed with a third-party vendor. The plaintiffs’ request for production covered a three-year period, and the plaintiffs claimed that the data was required in order to produce evidence of work that the plaintiffs had performed for the defendant. After substantial delay, the defendant provided recordings for one year but refused the other two. The defendant argued that because the vendor is a third party, the requested data is not “in [its] possession, custody, or control” under FRCP 34(a)(1). Additionally, the defendant noted the $15,000 cost to obtain the data already produced, and asked the court to shift either some or all additional discovery costs to the plaintiffs. The court turned to the Seventh Circuit’s definition of “control” in the context of Rule 34 as “a legal right to obtain.” Under this premise, the court found that the long-term business relationship between the defendant and the vendor, the vendor’s maintenance of the defendant’s recorded information “in the ordinary course of business”, and the fact that the defendant had already successfully obtained data from the vendor, established that the defendant had control of the requested information. In considering the defendant’s request to shift costs, the court noted that FRCP 26(b)(2)(B) places the burden on the defendant to rebut the presumption that the responding party bears the costs of discovery. In order to determine if discovery is proportional in deciding whether to shift costs, the applied the Seventh Circuit’s eight-factor test: “1) the likelihood of discovering critical information; 2) the availability of such information from other sources; 3) the amount in controversy as compared to the total cost of production; 4) the parties' resources as compared to the total cost of production; 5) the relative ability of each party to control costs and its incentive to do so; 6) the importance of the issues at stake in the litigation; 7) the importance of the requested discovery in resolving the issues at stake in the litigation; and 8) the relative benefits to the parties of obtaining the information.” The court, finding that the plaintiffs were not operating “on a blank slate as part of a fishing expedition”, held that the probative value of the vendor’s data outweighed the burden to the defendant, and that the defendant failed to prove that it is entitled to cost-shifting.