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Abstract

Issues of reasonableness arise regularly throughout American law. Reasonableness is a concept central to tort law, which imposes a reasonable person standard in ascertaining duty. Criminal guilt turns on a reasonable doubt standard. And in civil discovery, the concept of reasonableness features prominently: discovery's scope reaches information that is reasonably calculated to lead to the discovery of admissible evidence, and discovery cannot be unreasonably cumulative or duplicative. Reasonableness standards require judges to undertake an objective, rather than subjective, evaluation. E-discovery specifically has two significant overarching reasonableness components: reasonable accessibility for production and reasonable care in preservation and disclosure. The interpretation of these two components plays a central and determinative role in the effectiveness and burdensomeness in discovering electronically stored information.

This Symposium Article addresses the first of these two components - reasonable accessibility - analyzing the guidance available on this issue from the case law and commentators and concluding that current approaches to reasonable accessibility often fail to employ the required objective reasonableness standard. Current approaches tend to err in two prominent ways: (1) by relying inappropriately on informational classifications, and (2) by merging distinct standards into a single standard. Of particular significance, Federal Rule 26 creates a twofold reasonableness interpretation - both with respect to what constitutes reasonable accessibility and also with respect to what constitutes undue burden or expense. However, rather than undertaking an objective, fact-specific inquiry of reasonable accessibility, some courts are relying on categories for presumptive accessibility or inaccessibility. In addition, many courts appear to be evaluating "undue burden or expense" as one conflated standard that considers only cost.

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