Theriault v. New Direction IRA, Inc., No. 23-2477-JWB-ADM (D. Kan. Sept. 4, 2026), full opinion (PDF)
On September 4 a magistrate judge in Kansas granted a motion to compel against a self-directed IRA custodian. The custodian had filed a declaration on the burden of responding to the document request as served. By then the plaintiffs had scaled that request back at a discovery conference. The custodian had said on the record that it understood the request to be limited to email.
On the version before the court, the court found, the custodian never addressed the burden of responding at all.
What happened
The plaintiffs are former clients who held precious metals at a depository later found liable for misappropriating them. They allege the custodian identified that depository to potential clients while withholding damaging information about the depository and its owner. The request they served asked for every communication in which the custodian had identified or recommended the depository to anyone.
The custodian's burden objection ran to communications beyond the accounts it had already searched. At a discovery conference the custodian described that search to the court. That search had already turned up more than 233,000 responsive documents across the roughly 540 putative class members' accounts. Running the same search across its other precious metals accounts, it argued, would be unduly burdensome. In a footnote, the court noted that the custodian's count of those other accounts, more than 44,000, does not match the figure in its own declaration.
At the same conference the plaintiffs scaled the request back. They wanted email from the custodian's precious metals team and from other employees whose job included talking to account holders about depositories. The custodian said it understood the request to be confined to email.
The plaintiffs' motion to compel did not repeat the limit to employee email. The custodian's opposition accused them of reneging. It also asserted that the request was disproportionate even as narrowed. Only in their reply did the plaintiffs confirm they sought limited searches of particular employee email accounts. The court decided the motion on that version.
The court's analysis
In the court's view, the custodian did not meaningfully attack relevance. It asserted only that the records were irrelevant. A conclusory statement of that kind does not carry an objecting party's burden of supporting a relevance objection. The court found the information sought relevant in any event. A key issue in the case, the court stated, is how far the custodian identified or recommended the depository to clients and prospective clients.
The proportionality ruling turned on a mismatch between the burden evidence and the live request. A party resisting discovery has to supply detail about the time, money, and procedure a response would take. The custodian's declaration described the burden of responding to the request as originally written. It explained why a manual review of every account would be necessary. Data had been lost in migrations and under the custodian's document retention schedule, the declaration stated. For that reason, it continued, a simple database search would not necessarily capture all correspondence exchanged with an account holder over time.
The declaration did not address the burden of responding to the request as narrowed, the court observed. The court read the plaintiffs' limitation to require a keyword search of email accounts belonging to employees whose duties included communicating with clients about selecting depositories. That search would run only against databases the custodian could reasonably access. The custodian would not have to hunt manually for emails lost to platform migration or the retention schedule. Nor would it have to search its previous data storage platform, which it acknowledged could hold screenshots of email correspondence. Measured against that narrowed search, the court concluded, the custodian had neither addressed the burden nor shown the request disproportionate. The objections were overruled.
If the plaintiffs' position was not entirely clear until their reply, the court noted, the custodian had not sought leave to file a sur-reply.
Why it matters
A burden showing is evidence about the request the court is actually deciding. A request can narrow at a conference, in correspondence, or in a reply brief. The declaration supporting the objection must be measured against the version that survives.
The custodian's brief did assert that the smaller request remained disproportionate. Its declaration never addressed that narrower version. A party that accepts a limit still bears the burden of supporting its objection to what remains.
The court also did the defining work the parties had left undone. Handed a limitation described in general terms, the court supplied the operative detail itself, down to the platform the custodian could leave alone. A party that leaves that definition to the court gets whatever the court considers reasonable. An ESI protocol that names the mailboxes and databases to be searched keeps the scope in the parties' hands. So does a letter confirming the limit.
The full opinion is available as a PDF.
