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When is an ESI Demand Unduly Burdensome?

Jun 14, 2023 | IT, Operating Your Company

With the widespread use of computers, tablets, cellphones, and other devices to store data, ESI (short for electronically stored information) is a crucial part of commercial litigation. Since ESI often encompasses a vast amount of information, any demands made for the data during a lawsuit must not be unduly burdensome. The information sought must be both relevant and proportionate to the needs.     

What Does “Unduly Burdensome” Mean in E-Discovery?       

The costs associated with ESI requests for production can be exorbitant. A party from whom ESI is sought may raise an objection a request is “unduly burdensome.” A party may also move for a protective order that seeks to apportion the processing and storage costs incurred.     

A discovery request that is “unduly burdensome” is typically one which is unnecessarily time-consuming, costly, and not proportional considering the needs of the case. In weighing whether the information sought is proportionate, a court may consider the following under the Federal Rule of Civil Procedure 26(b)(1):

  • The importance of the issues at stake
  • The amount in controversy
  • The relative access the parties have to the information
  • The resources of the parties
  • The importance of the information in resolving the issues in the case
  • Whether the burden or expense of the discovery sought outweighs the likely benefits

Under the rules adopted by the New York State Unified Court System, parties to litigation must confer regarding e-discovery before the initial conference takes place. The rule addresses efficiency and cost with the discovery process and is like the federal standards requiring proportionality. 

Factors to Consider in the Preservation of ESI

Electronically stored information must be preserved — and a party must take steps to preserve relevant data once litigation is pending or reasonably anticipated. Factors that should be considered when formulating the steps to preserve ESI include the issues, the relevant time frames and geographic locations, and the types of ESI that may relate to the claim. A party who must produce ESI should also evaluate whether archived sources are likely to have relevant information, third-parties have relevant information, and document destruction policies should be suspended. 

A litigation hold letter should be sent to any relevant individuals as soon as there is a reasonable possibility of litigation. The preservation of ESI should be discussed between parties, including the implementation of a litigation hold, to ensure the ESI sought to be preserved is tailored to the case and is not unduly burdensome. While preservation letters are unnecessary to tell a party about its duty to preserve ESI, they should not be overly broad if they are drafted. 

For some ESI sources, the burden of preserving the electronic data may outweigh the potential benefit of relevant information it might contain. However, it’s important to understand that ESI should not be considered “not reasonably accessible” simply due to how it is stored. Parties should discuss whether the sources of ESI need to be preserved and what information may be preserved under ordinary business retention protocol.   

Contact an Experienced Commercial Litigation Attorney

E-discovery in commercial litigation can be complicated and it’s essential to have a proficient attorney by your side who can guide you through the process. Brinen & Associates provides aggressive representation to business owners for a wide variety of commercial matters and is adept at handling issues pertaining to electronically stored information. Call (212) 330-8151 or send us a message to learn how our New York Business Law attorneys can help.


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I formerly worked as a satellite employee from my home state of New Jersey. I ended my employment with my former employer in 2016. In 2018, I was sued by my former employer for $1.1 million in Illinois State Court. I was referred to Brinen & Associates, LLC by a friend who is a client of the firm. Brinen & Associates, LLC came highly recommended. I contacted Joshua Brinen and then had a consultation at his office with his colleague Mark White. Together, Messrs. Brinen and White explained my options...

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