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Nov
4
Production of ESI on backup tapes denied where ESI ruled inaccessible and requestor fails to demonstrate good cause
November 4, 2009 | 1 Comment
Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 97554 (D.N.J. Oct. 20, 2009)
Requestor sought e-mails from backup tapes and producers’ e-mail archives, while producer sought a protective order, claiming that the e-mails were inaccessible because of the burden and cost to retrieve them. Producer sought to limit discovery to the e-mails on their production system.
The total number of backup tapes at issue was 2,500, and producers ultimately asserted it would cost $1.5 million to harvest the e-mails. Producers had already harvested 152,000 e-mails from the live production mailboxes of 37 custodians. 70,000 of the 135,000 reviewed documents produced at least one hit on the over 100 search terms agreed to by the parties.
The court found that the e-mails were not reasonably accessible. First, the court noted that backup tapes were “typically classified as inaccessible.” Id. at *10. In addition, requestors had failed to credibly rebut producers’ estimates of the costs of retrieval. “It is not sufficient for plaintiffs to merely claim that defendants’ estimates are exaggerated or inaccurate. Plaintiffs should have presented contrary estimates or affidavits.” Id.
The court used the seven factors listed in the advisory committee notes to Rule 26(b)(2)(B) to determine whether good cause existed to produce the e-mails on the backup tapes despite their inaccessibility.
As to the first relevant factor, plaintiffs’ request is reasonably specific. The parties agreed upon the relevant keywords they would use when they searched the records of the 37 custodians. This factor weighs in plaintiffs’ favor. However, the second relevant factor weighs heavily in defendants’ favor. The Court finds that a substantial amount of relevant information is available to plaintiffs from a number of more easily accessed sources. For example, plaintiffs have and will take a substantial number of depositions. In addition, thousands of relevant documents and e-mails have already been produced to plaintiffs….The third factor examines whether defendants failed to produce relevant information that seems likely to have existed but is no longer available from more easily accessed sources. The Court finds that this factor is neutral. As to a number of the key witnesses in the case…, it appears that most if not all of their relevant e-mails have been produced. … In addition, defendants point out that due to the relatively late dates e-mail accounts were set up for many of the 37 requested custodians, backup tapes do not exist for the majority of the CBIU investigators whose e-mails are being requested….Nevertheless, the Court cannot rule out the possibility that some relevant evidence is contained in defendants’ backup tapes. As to the fourth factor, the likelihood of finding relevant responsive information that cannot be more easily obtained, the Court finds that this factor weighs slightly in defendants’ favor. Plaintiffs have not produced evidence that the backup or archived e-mails contain relevant information that is not otherwise available or cumulative of other evidence. There is, of course, a possibility that some of the requested e-mails contain “smoking gun” information. However, this is pure conjecture.
The fifth factor examines the importance and usefulness of the requested e-mails. The Court finds that this factor weighs in defendants’ favor. Based upon the Court’s knowledge of the voluminous discovery already taken, and the Court’s review of hundreds of documents during its in camera inspections, the Court believes that if relevant evidence exists in the requested e-mails it is likely cumulative of other relevant evidence already produced. The Court finds that the possibility that some cumulative evidence may be produced is not sufficient to outweigh the cost and burden to produce the requested e-mails. The sixth factor examines the importance of the issues at stake in the litigation. This factor favors plaintiffs. This case involves allegations of racial discrimination by public employees. In such an instance, it is not unreasonable to permit broad discovery so long as it is consistent with the Federal Rules of Civil Procedure and applicable case law.
The seventh and last factor examines the parties’ resources. The Court finds that this factor favors defendants. Given the complexity and scope of this litigation, it is apparent that defendants have already spent hundreds of thousands of dollars in time and money on the defense of the case. No party, including the State, has an unlimited litigation budget to pay for document production efforts that in all likelihood are of marginal benefit.
Id. at *11-*14. The court concluded that a weighing of the most important factors (the great amount of material already produced, and the likelihood that the backup tapes would be merely cumulative) favored producers. Even an alternative reduced set of tape searches (ranging in cost from about $80,000 to $157,000) did not justify the burdens of production.
However, given requestors’ insistence that the tapes contained relevant evidence, and that requestors “are pursuing issues of paramount public importance,” the court found that “a fair balancing of the parties’ interests leads to the conclusion that plaintiffs and defendants should share the cost of searching defendants’ backup tapes pursuant to defendants’ second search option.” The court ordered that the parties should share the costs of retrieval for a December, 2007 set of tapes, while producer would be required to pay for privilege and relevancy review. If requestors insisted on non-de-duplicated production, requestors would have to pay any incremental costs attributable to such production. As producers had insisted that a review of a March, 2006 set of tapes was unnecessary, requestors would have to pay all costs in connection with those tapes, including producers’ costs of privilege and relevancy review.
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Assuming all 2,500 tapes contain email. Assuming all email is unique and no duplicates exist on these backup tapes. Assuming all 2,500 tapes contain relevant custodian mailboxes. Assuming you will pay $600 per tape. Then this would be a $1.5 million dollar collection project that will take weeks of manual restoration work.
Enter with new technology and all these assumptions go out the window. Technology identifies which tapes have email, what email is duplicate, and what is in a custodian mailbox, all without ever restoring a single byte, at much less than $600 per tape. In fact, Index Engines partners are processing this scale of job in the range of 90% less than $1.5M. The dynamics of backup tapes discovery and collection has definitely changed.
Legal teams try to paint worst case scenarios so they won’t have to produce data from backup tapes – that’s their job. However the courts are becoming more educated on technology, such as Index Engines, that make getting responsive data from tape much less costly and burdensome. The burden argument is becoming less and less successful as time goes on. And decisions such as this one will be few and far between as the industry becomes more educated on tape indexing technology.
Jim McGann
Index Engines
http://www.indexengines.com/