Also known as:undue burden · undue burden standard · undue burden test
Written by attorneys · grounded in primary & secondary sources — see below
in civil discovery
A limitation on the scope of discovery that excuses a party from producing electronically stored information or complying with subpoenas when the sources are not reasonably accessible because of undue burden or cost. The responding party must demonstrate inaccessibility on a motion to compel or for a protective order. A court may still order production upon a showing of good cause after weighing proportionality factors.
Sources & Authorities· 9 primary sources
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Cases
Statutes
Federal Rules
Model Codes
Restatements
Hornbooks
How it applies
Common Examples
3
Legacy Backup Tapes in Procurement Suit
Uma Upadhyay, a former employee, sued United Bank for wrongful termination and sought ten years of archived email from decommissioned servers. United Bank identified the tapes as obsolete and estimated restoration costs at $400,000 with a four-month timeline. On the motion to compel, United Bank presented an IT affidavit showing no active copies existed. The court denied the motion after finding the information not reasonably accessible due to undue burden.
Protective Order for Internal Affairs Files
Ulrike Ulrich and other residents sued the City of Redford alleging police misconduct and requested seven years of unredacted internal affairs records for an entire unit. The city moved for a protective order, certifying a good-faith conference and citing officer safety risks plus massive review costs. The court granted the order in part, narrowing the time period and requiring redactions to prevent undue burden and expense.
Subpoena to Nonparty Vendor
Ugo Ucelli subpoenaed a former vendor's archived project files in a patent dispute. The vendor moved to quash, showing that compliance would require hiring forensic specialists at substantial cost and diverting key personnel for weeks. The court granted the motion, finding that the subpoena subjected the vendor to undue burden.
Common questions
Frequently Asked
5
What must a party show to avoid producing electronically stored information under the undue burden limitation?+
The party must identify the sources as not reasonably accessible because of undue burden or cost and support that claim with evidence on a motion to compel or for a protective order. Once shown, the requesting party may still obtain the information by demonstrating good cause after considering proportionality limits.
Supporting sources
When may a court issue a protective order based on undue burden in discovery?+
A court may issue a protective order for good cause shown to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. The motion must include a certification of good-faith conferral, and the court can tailor the order by limiting scope, allocating costs, or imposing other conditions.
Does signing discovery objections on undue-burden grounds require a reasonable inquiry?+
Yes. An attorney's signature certifies that, after reasonable inquiry, the objection is not interposed for an improper purpose and is neither unreasonable nor unduly burdensome in light of the needs of the case. Failure to investigate actual costs, resources, or proportionality violates the certification requirement and may lead to sanctions.
Supporting sources
How does the undue burden rule interact with proportionality in civil discovery?+
The rule requires courts to limit discovery that is unreasonably cumulative, disproportionate to the needs of the case, or obtainable from more convenient sources. Factors include the amount in controversy, importance of the issues, parties' resources, and whether the burden outweighs the likely benefit.
Supporting sources
What showing supports good cause to compel production despite an undue burden claim?+
The requesting party must demonstrate that the information is important to the claims or defenses, that alternative sources are unavailable, and that the need outweighs the burden. Evidence of possible spoliation or the unique value of the data can strengthen the showing, and the court may impose cost-shifting or phased production conditions.
Supporting sources
Constitutional LawThe relation of nation and states in a federal system · Federalism-based limits on state authorityUBEIntermediate