Metrics Prevail in ESI Dispute by Showing ESI Was Not Reasonably Accessible

In Choudhury v. NYC Health and Hospitals Corp., 2026 WL 124376 (S.D.N.Y. Jan. 16, 2026), defendant prevailed because it supported its argument with metrics.  The court held that the facts presented demonstrated that requested ESI was not reasonably accessible because of undue burden or cost.

Ms. Choudhury asked the court to approve her proposed ESI Protocol and to compel defendant H+H to respond to her discovery. The court denied her request to approve her protocol in light of H+H’s detailed factual metrics.

Ms. Choudhury’s proposed protocol requires H+H to identify “all electronic systems, databases, and/or files that may contain documents or information responsive to Plaintiff’s discovery requests.” Id. at *1.  It also requires H+H to search any “additional sources of ESI that may contain documents and/or information responsive to a discovery request not specifically referenced herein.” Id.

H+H objected and it provided metrics to support its objection. It wrote that:

H+H “is the largest municipal health-care system in the country,” with approximately “89,000 active mailboxes,” and “more than 70 patient-care locations across the five boroughs of New York City.” …. It also states that the sources with potentially responsive information “would include, at a minimum, the corporate e-mail accounts of every employee who ever interacted with Plaintiff.”

The Choudhury court found that these facts showed that the ESI requested was “not reasonably accessible because of undue burden or cost,” citing Fed. R. Civ. P. 26(b)(2)(B). Id. at *2.  It ordered the parties to meet and confer.

One might also conclude that there was a showing that the request went beyond the scope of discovery under Fed.R.Civ.P. 26(b)(1) because it was not proportional to the needs of the case.

Ms. Choudry’s proposal would require “H+H to search 10 custodians’ records for 30 terms during the three-year period from November 30, 2021 to November 30, 2024.”  Again, H+H responded with metrics: “H+H states that, on January 10, 2026, it ran a pre-collection search using the Group 1 search terms and produced a report to Choudhury, which revealed that such a search would result in a total of 1,280,915 hits and a data size of 1.25 terabytes.”  Id. at *2.

However, H+H did not stop there, because it offered a solution. “[I]t has proposed modifying the Group 1 search parameters, and plans to share a report with Choudhury reflecting the hits and data size that such a revised search would generate.”  Id.

Based on this information, the court denied Ms. Choudhury’s request, ordered a meet and confer, and it “strongly urges Choudhury to come to that conferral open to finding a compromise solution that is workable and realistic.”

The court wrote that: “H+H describes, in detail, the reasons this request is onerous and impracticable.”  Id. at n. 2.  It added:

The Court summarizes some [of those reasons] here. First, because H+H’s e-mail system is “confined to servers physically located on hospital premises,” searches on these consume limited resources and can take months to process, creating backlogs that delay other requests. … Second, H+H has a “journaling e-mail system,” which is not compatible with modern e-discovery platforms and returns entries “spanning hundreds of accounts.” ... Third, the system cannot generate per-search-term hit reports. Thus, to comply with Choudhury’s request, hospital information technology (“IT”) staff would need to run each search term as a separate query. Because there are 10 custodians and 35 search terms, this would entail 350 searches, which H+H estimates would take one full-time employee approximately three to four months to complete.

Id.