Also known as:undue burden · undue burden test · undue burden doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A condition that excuses a party from complying with a discovery request or subpoena when the required production would impose excessive cost or hardship. The party resisting discovery must demonstrate that the information is not reasonably accessible because of the burden or cost. A court may still order production upon a showing of good cause or may impose conditions to mitigate the burden.
Sources & Authorities
How it applies
Common Examples
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Offsite Archive Production Dispute
Peak Life Sciences served broad requests for production on River Therapeutics seeking five years of lab notebooks and raw data files from all research divisions. River identified its offsite archived trial databases as not reasonably accessible and refused to search them. On Peak's motion to compel, River showed that retrieval would require restoring legacy systems at substantial expense. The court denied the motion after finding no good cause to override the accessibility limitation.
Protective Order for Expense Allocation
Ultimate Solutions moved for a protective order after receiving voluminous document requests in pending litigation. It certified that counsel had conferred in good faith about narrowing the requests but the parties could not agree. The court issued an order allocating the costs of electronic review between the parties to avoid imposing undue burden or expense on Ultimate Solutions.
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Cases
Statutes
Federal Rules
Model Codes
Restatements
Study Supplements
Subpoena Quashed for Burden
Union Steel received a subpoena demanding production of twenty years of internal manufacturing records from a distant facility. It moved to quash on the ground that compliance would require extensive manual review and employee time far exceeding the needs of the case. The court granted the motion after finding that the subpoena subjected Union Steel to undue burden.
Religious Publication Tax Challenge
Texas Monthly challenged a state sales tax that exempted religious publications while taxing secular ones. The publisher argued that the exemption scheme created an undue burden on nonreligious speech by forcing it to compete at a disadvantage. The Court held that the selective exemption violated the First Amendment even though the tax itself did not impose an undue burden on religious exercise.
Texas Monthly, Inc. v. Bullock489 U.S. 1 (1989)
Religious Accommodation in Scheduling
An airline employee requested Saturdays off to observe the Sabbath. The employer refused, citing the cost of hiring replacements and the disruption to flight schedules. The Court held that requiring the accommodation would impose an undue burden on the employer under Title VII.
Trans World Airlines, Inc. v. Hardison432 U.S. 63, 84 (1977)
Gun-Free School Zones Act Challenge
A high school student was charged under a federal statute prohibiting firearms near schools. The defendant argued that the law exceeded Congress's commerce power and imposed an undue burden on local education policy. The Court struck down the statute as lacking a sufficient nexus to interstate commerce.
United States v. Lopez514 U.S. 549 (1995)
Common questions
Frequently Asked
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When must a party show that electronically stored information is not reasonably accessible?+
A party resisting discovery of electronically stored information must demonstrate that the sources are not reasonably accessible because of undue burden or cost. Once that showing is made, the requesting party may still obtain the information by demonstrating good cause under Rule 26(b)(2)(C).
Supporting sources
What must a movant certify before seeking a protective order based on undue burden?+
The movant must certify that it has in good faith conferred or attempted to confer with other affected parties to resolve the dispute without court action. Only after that certification may the court issue a protective order to protect against undue burden or expense.
Supporting sources
How does undue burden factor into enforcement of a subpoena?+
A court must quash or modify a subpoena that subjects a person to undue burden. The party issuing the subpoena has a duty to take reasonable steps to avoid imposing such burden, and sanctions may follow a failure to comply with that duty.
Supporting sources
514 U.S. 549 (1995)Constitutional Law
…of our dormant Commerce Clause jurisprudence has been the principle that the States may not impose regulations that place an undue burden on interstate commerce, even where those regulations do not discriminate between in-state and out-of-state businesses. See Brown-Forman Distillers Corp. v. New York State Liquor…