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Magistrate Judge Burke discovery rulings remind parties of need to support undue burden arguments with evidence

Magistrate Judge Christopher J. Burke recently issued an order resolving several discovery disputes and reminding litigants that a party opposing discovery on the basis of alleged undue burden typically must do more than simply argue that it will be burdened. E.I. du Pont de Nemours and Co. v. Heraeus Precious Metals North Am. Conshohocken LLC, C.A. No. 11-773-SLR-CJB (D. Del. July 26, 2013). Although Judge Burke found that information regarding the plaintiff’s conductive pastes used for non-photovoltaic applications was relevant to the defendant’s invalidity defenses, the Court did not order production of all such information, because “the burden for [the plaintiff] to produce ‘potentially thousands of records’ regarding ‘at least 1,500 products’ (nearly all of which are non-photovoltaic products) spanning ‘multiple years’ outweighs its likely benefit to [the defendant].” Id. at 2. The Court made this ruling even though the plaintiff failed to provide affidavits or other evidence to support its undue burden argument, which the Court noted would have been preferable. Id. at 2 n.1. Notably, though, the Court explained that the requested information was not truly needed by the defendant in light of admissions made by the plaintiff. Id. at 2-3 n.2.

Judge Burke next considered whether pre-2003 information in an electronic database was inaccessible under Rule 26(b)(2)(B). Here, because the plaintiff did not support its “inaccessibility” argument with an affidavit or other evidence, the Court could “not conclude that the data here is inaccessible.” Id. at 4. Similarly, the plaintiff argued that it would be unduly burdened by an order requiring that it produce batch-by-batch quality control data from pre-2006 testing, but the Court found that the argument was “brief,” “not particularly specific,” and moreover did “not provide the Court with enough detail regarding the likely time, cost or effort associated with the proposed search, sufficient to conclude that the request is unduly burdensome . . . .” Id. at 4 n.5. On the final issue, the Court ordered that [the plaintiff] identify certain ingredients in its pre-2006 conductive pastes, explaining that the plaintiff made “no attempt to specifically combat the relevance of this data, nor to make concrete the burden it would face in responding to this portion of the request.” Id. at 5.

E.I. du Pont de Nemours and Co. v. Heraeus Precious Metals North Am. Conshohocken LLC, C.A. No. 11-773-SLR-…

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