Availability of Clawback Order Thwarts Claim of Undue Burden Based on Cost to Review
“In this brief opinion, the court considered Defendants’ claim that the burden of producing the requested ESI outweighed its potential benefit to the class action plaintiffs and granted Plaintiffs’ motion to compel.” In granting Plaintiff’s motion to compel, the court reasoned that “a clawback order can protect Defendants against a claim of waiver, such that Defendants need no longer bear the cost of reviewing the ESI for responsiveness and privilege. To further reduce any undue burden, Plaintiffs may need to refine their proposed search terms to narrow the pool of potentially relevant documents. In light of these options, Defendants have not shown that producing the requested ESI will be unduly burdensome.”