Rule 26(b)(2)(B) permits a party to decline production of ESI identified as not reasonably accessible because of undue burden or cost. The party must still identify the sources, and the court may order production on a showing of good cause.
Backup tapes, legacy systems, and deleted-but-recoverable data are the typical categories.
Alternative Names:
Inaccessible ESI, Rule 26(b)(2)(B) Data
Why it Matters?
The identification requirement is what parties overlook: declining to produce does not mean declining to disclose the source exists. A party that never identified inaccessible sources and later relies on inaccessibility has forfeited the argument. Accessibility is also a moving target, since data once requiring tape restoration may now be cheaply searchable, and courts assess current burden rather than historical characterizations.
Frequently Confused with
Related terms
Frequently asked questions
Must inaccessible sources still be identified?
Can a court order production anyway?
