Irresistible Evidence Under Federal Rule 26(c): Proving Annoyance, Embarrassment, and Undue Burden

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Tuesday, November 15, 2022

Recorded event now available

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Course Materials

This CLE webinar will discuss how to get a court's attention in a discovery dispute and prove (or disprove) annoyance, embarrassment, and undue burden for Federal Rule of Civil Procedure 26(c) and corresponding state court rules. The panel will discuss the evidence needed beyond boilerplate recitals, what degree of annoyance, embarrassment, or burden justifies judicial intervention, and what moves judges to grant relief. The panel will also discuss the use of special masters.


Parties in federal court (in most states) are entitled to discovery of nonprivileged matter relevant to any party's claim or defense and proportional to the needs of the case. But can litigants make respondents create records or analyses of raw data or the other side?

A court can prevent or limit pretrial discovery to protect the party or person from whom it is sought from annoyance, embarrassment, oppression, or undue burden or expense. Since most discovery is usually unwelcome, vigorous debate continues over what constitutes excessive annoyance, embarrassment, oppression, undue burden or expense, the necessary burdens of proof, and the quality of evidence required to obtain relief.

Since courts hear complaints routinely, counsel must be able to capture the court's attention with concrete arguments supported by data and evidence.

Listen as this esteemed panel of litigators discusses what is required to prove or disprove that discovery subjects the subject to annoyance, embarrassment, oppression, or undue burden or expense sufficient to modify the general rules of production.



  1. Relevant legal standards
  2. Evidence that captures the court's attention
    1. Undue burden or expense
    2. Trade secret or other confidential research, development, or commercial information
    3. Annoyance
    4. Embarrassment
    5. Oppression
  3. Cost shifting and sanctions


The panel will review these and other issues:

  • What is particularized harm?
  • What is excessive annoyance, oppression, or embarrassment?
  • How is undue burden measured?
  • Must a respondent create new records or compile data?


Broz, Kristen
Kristen W. Broz

Fox Rothschild

Ms. Broz centers her practice on complex litigation, with an emphasis on class action, antitrust and mass torts. She...  |  Read More

Fradette, Jacquelyn
Jacquelyn E. Fradette

Sidley Austin

Ms. Fradette is a complex civil litigator who represents clients in all areas of trial litigation. Her experience...  |  Read More

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