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E.D. Cal.: Throwing Out Figures for Cost of Data Decryption Conclusory

This week, Judge Sheila K. Oberto, issued a decision Son Gon Kang v. Credit Bureau Connection, Inc., No. 1:18-cv-01359-AWI-SKO, 2020 U.S. Dist. LEXIS 61229 (E.D. Cal. Apr. 7, 2020) denying the Defendant's motion for a protective order.

The Defendant contended that responding to a discovery request would require it to develop two new programs costing $45,000 in order to search databases that store encrypted data, and involve additional manual review costing more than $3 million. It submitted two declarations to support these contentions, which were prepared by its Chief Technology Officer and Chief Operating Officer, and which contained conflicting information. The Plaintiff submitted a declaration from the owner of an electronic discovery consulting firm (Jonathan Jaffe of Its-Your-Internet), which asserted that the data can be searched without decryption, and that automated review can be performed without extensive participation by a human reviewer.

Judge Oberto found that the data was not inaccessible due to undue burden or cost under Fed. R. Civ. P. 26(b)(2)(B). The Court observed that the Defendant's assertions were unsupported by factual evidence, noting that decryption and filtering are common discovery practices. "[C]ontrary to Defendant's assertion, the fact that the database is currently encrypted and not 'searchable' does not make it 'inaccessible'", Id. at *12 . The Defendant failed to refute the possibility of an automated review raised in the Plaintiff's declaration, and it was shown that a specific search in the database with the encrypted data could locate a file pertaining to the Plaintiff.

"]A]lthough Defendant repeatedly throws out figures exceeding three million dollars to create the appearance that the review process will be costly, it is unable to provide any supportable estimate of the number of files that will need to be reviewed or the cost of reviewing a file--which comprise the bases for the exorbitant cost estimate." Id. at *14-15. Credit Bureau Connection failed to show the ESI was inaccessible because of undue burden or cost.

The Court further found that the Plaintiff's need for the ESI in question outweighed any burden or cost, because there was a specific request; the information could only be found in the database, and not any other source; and because the information was essential to a class certification motion. The parties were ordered to meet and confer, and agree upon a schedule for production.

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