Court Discusses The Obligation To Preserve Text Messages Under New Rule 37(e)

In a recent decision from the Western District of North Carolina, the Court discussed the importance of preserving text messages from accidental destruction due to a loss of a party’s cell phone.  In Shaffer v. Gaither, 2016 U.S. Dist. LEXIS 118225 (W.D.N.C. Sept. 1, 2016), the plaintiff brought sexual harassment claims against her former employer under Title VII of the Civil Rights Act.  The defendant employer moved to dismiss the action when it was discovered that relevant text messages that were on the plaintiff’s cell phone had been destroyed.  The plaintiff claimed that her cell phone had been accidentally destroyed when she dropped it in the bathroom in May 2014, well after both she and her counsel knew of the impending litigation.  She sent the broken phone and SIM card to her insurance company, and therefore no longer had access to the content of the relevant text messages.

The Court considered the amendments to Federal Rule of Civil Procedure 37(e), which states that the duty of a party to preserve electronically stored information (“ESI”) arises when litigation is “reasonably anticipated” and the loss of ESI is sanctionable when “reasonable steps to preserve” are not taken and such information cannot be restored or replaced through additional discovery.  The Court held that the plaintiff had not taken reasonable steps to preserve the relevant text messages, as the text messages only resided in the plaintiff’s cell phone, even after litigation was anticipated.  The Court stated that the plaintiff and her counsel should have taken steps to protect against destruction of the texts, such as printing the texts out, making an additional electronic copy of the texts, cloning the cell phone, or even placing the cell phone in the possession of her attorneys and getting a new personal phone for the plaintiff.

Despite the plaintiff’s failure to take reasonable steps under Rule 37(e), the Court declined to dismiss her case because the sanction of dismissal was not the sanction of first resort.  Rule 37(e)(1) and 37(e)(2) allow courts to take no greater action than necessary to cure the prejudice from the loss of the ESI, and there was no evidence of intentional spoliation.  The Court believed that the defendant may be able to cure the prejudice through testimony, as it was believed that several individuals read the relevant text messages before they were destroyed.  The Court nevertheless reserved the right to make a spoliation instruction at the trial if necessary to correct the prejudice from the destruction (that is, an instruction to the jury that they should infer the text messages contained prejudicial information for the plaintiff).

It is crucial to take reasonable steps to preserve ESI as soon as litigation is reasonable anticipated.  This decision makes it clear that relying on individuals to preserve relevant text messages in their personal cell phones is not sufficient under Rule 37(e) to satisfy this obligation as text messages may be lost through accidental destruction of the phone and its contents.  If the party is aware of relevant text messages, they should print out the text messages and preserve the copies or make an additional electronic copy of the text messages to ensure they are complying with their ESI preservation obligations.

Court Sanctions Both The Defendants’ CEO And Defendants’ Counsel For Discovery Misconduct

District Judge Katherine Polk Failla imposed significant sanctions in Arrowhead Capital Finance, LTD v. Seven Arts Entertainment, Inc., 2016 U.S. Dist. LEXIS 126545 (S.D.N.Y. Sept. 16, 2016), following Defendants’ repeated failure to cooperate in discovery and comply with the terms of her previously issued discovery orders. 

 The Backdrop.  Plaintiff sued Defendants in 2014 seeking to enforce an incontestable judgment that it had no practical means of enforcing because all of the assets held by the debtor had been sold to Defendants.  Defendants filed a motion to dismiss, arguing the Court lacked personal jurisdiction.  The Court denied the motion pending discovery.  In a letter dated September 21, 2015, Plaintiff claimed that Defendants and their attorney had engaged in various forms of misconduct during discovery.  Specifically, Plaintiff alleged that Defendants had puffed up their discovery with a nonresponsive document production, while simultaneously refusing to produce responsive documents.  Plaintiff also alleged that the discovery responses were incomplete and these issues were exacerbated by Defendants’ failure to produce key witnesses for deposition.  The Court held a conference to address Plaintiff’s concerns.  During the conference, Defendants’ counsel acknowledged that he had not reviewed the discovery responses and merely forwarded the materials he received from his client, Defendants’ CEO.

 The Court’s First Step.  Based on information received during a conference with the parties, the Court stated it had no confidence that Defendants were meeting their discovery obligations.  The Court ordered Defendants’ CEO to personally appear before the Court and testify concerning the alleged discovery misconduct following Plaintiff’s opportunity to depose multiple witnesses.  The Court also asked Plaintiff’s counsel to provide a list of the responsive documents Defendants had failed to produce and ordered Defendants to produce the documents identified by Plaintiff.  Nevertheless, Defendants continued to refuse to produce witnesses for deposition or produce the required documents.

 The Contempt Hearing.  Because Defendants’ CEO appeared to be directing Defendants’ counsel not to produce responsive documents or key witnesses, Plaintiff move for sanctions.  Defendants’ CEO testified that his offices were “paperless” and all records were stored on a server maintained by a third party that had destroyed the records in issue–after Defendants failed to pay their bills.  The CEO also cast blame on various staff people to whom he had purportedly delegated the task of compliance with the Court’s order.

 The Court Was Not Amused.  The Court concluded that Defendants were willfully making misrepresentations to the Court, cancelling depositions, and violating the Court’s orders for the purpose of withholding information from Plaintiff.  As such, the Court held that Defendants had forfeited their jurisdictional arguments through non-compliance with the Court’s discovery order and stated that the jury would receive a spoliation instruction, as appropriate, on any claims submitted to the jury.  Defendants’ CEO also was ordered to pay Plaintiff’s costs in association with bringing its motions in regard to discovery misconduct and was ordered to retain separate legal counsel to conduct a thorough review of Defendants’ files and determine if any additional responsive information remained to be produced.  This counsel also would represent Defendants in any future discovery hearings.   Defendants’ counsel, who was deemed complicit in the violations, also was ordered to pay a portion of Plaintiff’s costs. 

This decision reinforces that counsel may not blindly follow the instructions of their clients and have a duty to ensure that good faith efforts are taken to comply with a parties’ discovery obligations.


Federal Court Refuses To Compel Defendant To Produce Non-Responsive Documents That Hit On Agreed Upon Search Terms

A federal court in Texas recently refused to enforce the parties’ discovery agreement with respect to plaintiff’s request that the defendant produce all non-privileged documents responsive to search terms agreed to over email.  In BancPass, Inc. v. Highway Toll Admin., LLC, 2016 U.S. Dist. LEXIS 96978 (W.D. Tex. July 26, 2016), the Court addressed a dispute between two companies that provide mechanisms for motorists to pay highway tolls while driving rental cars.   In an effort to cooperate on electronic discovery in the case, BancPass and the Highway Toll Administration (“HTA”) negotiated certain search terms that the parties would use in order to locate and produce potentially responsive documents.  The agreed upon search terms included the following:

 • Smartphone /50 toll!

 • Smartphone /50 threat

 • Smartphone /10 app!

 • Phone! /10 app!

 • Double /10 bill

 • Geotoll

BancPass filed a motion to compel all non-privileged documents that hit upon these search terms.  Specifically, BancPass argued that the parties’ negotiations over these specific search terms, which occurred via written correspondence, constituted a binding and enforceable agreement between the parties.  BancPass claimed that the parties agreed that “all non-privileged documents responsive to the additional search terms will be produced,” which it understood to mean that every non-privileged document the search turned up would be produced, regardless of whether it had anything to do with the parties’ dispute.  Based on that understanding, BancPass ran the search terms against its data and produced all non-privileged documents that were hit by the search terms.  HTA, on the other hand, produced only those documents that were hit by the search terms and which were relevant to the case, and withheld the rest.  BancPass argued that an agreement by the parties to run search terms and produce all non-privileged results prevented HTA from later attempting to withhold documents based on relevance.  The Court disagreed.

 First, the Court reasoned that if it were to construe the parties’ correspondence on this topic to constitute a contract, it is likely that HTA’s actions would amount to a breach. The Court’s reading of the communications between the parties was that the parties agreed to produce all of the results of the searches except privileged documents.  However, the Court held the parties’ e-mail exchange was not a contract.  Rather, it was a means to simplify and limit the scope of production responsive to the parties discovery requests.  Then, having reviewed the attached affidavits detailing HTA’s search and review process, the court found there was no reason to believe that HTA withheld documents it was obligated to produce and was under no obligation to produce documents that hit upon the search terms but that were not relevant to the case.

 This case highlights that ESI is not necessarily responsive solely because it hits upon agreed upon search terms.  Should you find yourself in a situation where opposing counsel requests all documents returned from the agreed upon search terms whether or not the documents are relevant to the issues in the litigation, this case should be helpful to combat that claim.  However, as a better tactic, parties should avoid agreeing to produce non-relevant documents in the first place.  This case would have been simplified had the parties’ discovery agreement specifically stated that the parties would only produce non-privileged and responsive documents. 


Marginal Discovery Disallowed Because It Was Not Proportional To The Needs Of The Case

Under a ruling issued by a federal district court in Arizona (In re Bard IVC Filters Prods. Liab. Litig., 2016 BL 306366, D. Ariz., No. MDL 15-02641-PHX DGC, 9/16/16), the new Federal Rules for discovery allowed the defendant to avoid producing electronically-stored foreign communications in multidistrict litigation over allegedly faulty medical devices.

The decision is notable in part because it was issued by Judge David G. Campbell, who chaired the Rules Committee when the 2015 amendments were passed. Judge Campbell first reminded the litigants (and all other readers) that parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.  As to the first part of this test, the Court noted that the new formulation of the Rule eliminates the former provision that inadmissible evidence was discoverable if it “appears reasonably calculated to lead to the discovery of admissible evidence.”  The court further noted that “[d]espite this clear change, many courts continue to use the phrase. Old habits die hard” and cited to seven decisions issued in the month prior that relied on the “reasonably calculated” language to define the scope of permissible discovery.

Judge Campbell’s gentle scolding of the profession is a good reminder for litigators to update their standard objections to discovery requests as well as brief points when moving for the production of discovery or defending against a motion to compel discovery.

Judge Campbell next addressed the second half of the test – proportionality – and held that the amended Rule 26(b)(1) “does not place on the party seeking discovery the burden addressing all proportionality considerations.” Instead, he noted, the Committee Notes to the amendments say the parties and the court have a “collective responsibility” to consider the proportionality of all discovery in resolving discovery disputes.

Some commenters have suggested that the revision and this Committee guidance should mean the principal burden falls on the judge and not the parties. How that will play out remains to be seen.

In this case – a product liability multidistrict litigation involving the malfunction of inferior vena cava filter implants – the plaintiffs requested communications between foreign entities that sell the filters abroad and foreign regulatory bodies.  Judge Campbell found those foreign communications were only marginally relevant, including because there were no plaintiffs from foreign countries, and because plaintiffs were seeking communications with foreign regulators for the narrow purpose of determining if any of those communications were inconsistent with defendants’ communications with the American regulators. The “mere conjecture” that foreign communications may be inconsistent with communications with the American regulators made the discovery only potentially relevant and not proportional to the needs of the case because the burden of located and producing the requested discovery outweighed its likely benefit, especially given the extensive discovery already taking place to capture communications with the American regulator.

ESI Lost After Duty To Preserve Had Been Triggered Results In Limited Sanction Under New Rule 37(e)

A federal court in Utah recently applied the newly amended Rule 37(e) and, in doing so, issued relatively limited sanctions following a finding of spoliation.   In First American Title Insurance Company, et al v. Northwest Title Insurance Agency, et al, No. 2:15-cv-00229, 2016 U.S. Dist. LEXIS 118377 (D. Utah, Aug. 31, 2016), the plaintiff, First American, sued two ex-employee defendants for taking and using the company’s confidential and trade secret information for use at their new business they formed to compete with the company, defendant Northwest Title.  First American sent preservation demand letters to the defendants, and there was evidence that certain documents and ESI were destroyed prior to receipt of the preservation demand.  In seeking sanctions, First American argued that the defendant’s duty to preserve arose as soon as they set up Northwest.  However, the court held that defendants knew or should have known litigation was “imminent” only upon receipt of the preservation demand letters and, therefore, the defendant’s duty to preserve under Rule 37(e) was not triggered until that date.

Although this ruling resolved the issue regarding the alleged spoliation by Northwest Title that occurred prior to the duty to preserve being triggered, the decision also addressed additional allegations of spoliation that occurred after the duty had been triggered. However, the court found that sanctions were not warranted under Rule 37(e) because First American did not demonstrate that the electronic files at issue were actually “lost” or that they could not be restored or replaced through additional discovery.

The court also addressed the fact that an ex-employee who took numerous hard-copy documents and a thumb drive containing electronic First American files to her new job at Northwest Title subsequently lost the thumb drive and could not recall with specificity all of the ESI files or documents she took with her.  She admitted that some of the materials were used in the course of business for Northwest.   The evidence showed that the thumb drive likely was lost after the defendants’ receipt of the preservation demand.   Looking to Rule 37(e), the court found that First American was prejudiced by not having access to the thumb drive because the lost ESI went to the heart of First American’s claims that defendants took and misused confidential information, and there was no mechanism to enable First American to recover or restore the files through further discovery.

In determining the appropriate sanction, the court reasoned that because there was no evidence that the defendants “acted with intent to deprive another party of the information’s use in the litigation” under Rule 37(e), the sanctions of evidence preclusion, adverse inference, or monetary sanctions were not available and the court could only “order measures no greater than necessary to cure the prejudice.”  Based on this framework, the court concluded that the parties would be permitted to present evidence and argument to the jury regarding spoliation of the ESI and documents, but the jury would not be instructed regarding any presumption or inference regarding those materials.

This case highlights the new requirement of Rule 37(e) that a party seeking sanctions for spoliation of ESI must show that the ESI at issue is truly “lost,” and cannot be restored or replaced through additional discovery, as ESI is often stored in multiple locations.   The case also illustrates Rule 37’s new guidance for courts in determining appropriate sanctions specific to discovery disputes involving ESI.

Federal Court Compels Former Executive To Respond To Extensive Discovery Requests Despite High Cost

A federal court in Pennsylvania recently ordered a former executive to respond to costly and expansive discovery requests in a case where the former executive allegedly set up a competing business in violation of his employment agreement.  Although responding to the discovery was expected to be a costly endeavor, the Court in First Niagara Risk Management, Inc. v. John A. Folino (E.D. Penn. August 11, 2016) nevertheless rejected the defendant’s financial hardship argument based on the fact that he recently received $5 million for the sale of two companies to the plaintiff.

In this case, Folino began working for First Niagara in 2010 as its First Vice-President and Regional Director of Insurance for Western Pennsylvania after First Niagara paid Folino $5 million for the assets of the two business Folino owned.  As part of that sale, Folino signed an employment agreement containing non-solicitation and non-competition provisions that prevented him from competing with First Niagara.  Despite this agreement, First Niagara alleged that while working for First Niagara in 2015, Folino began working with another First Niagara employee to set up a business that directly competed with First Niagara.

During discovery, First Niagara filed a motion to permit the parties’ neutral eDiscovery vendor to conduct searches of all of Folino’s personal electronic devices and email accounts using roughly 100 separate terms and covering an almost a two and a half year period.  Folino objected to this request on the basis that it was overly broad, unduly burdensome, and excessively costly.

In granting First Niagara’s motion to compel the requested discovery, the Court found that although First Niagara’s discovery requests were “rather broad,” they nevertheless were proportional to the needs of the case.  In reaching its decision, the Court stated the following factors weighed in favor of granting First Niagara’s motion:

  • Information produced in discovery demonstrated that Folino was involved in forming the competing company and recruiting First Niagara employees to join the company;
  • Folino had access to the information at issue while First Niagara did not; and
  • The information sought was highly relevant to First Niagara’s claims.

As for Folino’s claim that compliance with the discovery requests was cost-prohibitive, the Court specifically found that Folino’s “complaints about cost ring hollow from someone who just sold two companies for over $5 million.”

As this case demonstrates, courts look at the totality of the facts before making a proportionality determination under the revised Federal Rules of Civil Procedure.  Although individual defendants frequently have strong arguments against being compelled to engage in costly e-discovery, parties are well advised to consider the financial status of their clients before arguing that requested discovery is cost-prohibitive.

A Party May Comply With Rule 34 By Identifying Its Search Parameters As Opposed To Identifying Withheld Documents

According to a recent decision of the U.S. District Court for the District of Kansas, a party may satisfy its obligations under  Rule 34 when—in response a demand for the production of documents—the party states how the party limited its search for responsive documents, but does not specifically identify the documents that have been withheld.

In Rowan v. Sunflower Elec. Power Corp., 2016 U.S. Dist. LEXIS 91109 (D. Kan. July 13, 2016) (Case No. 15-cv-9227), a defendant, in response to certain requests for the production of documents, did not explicitly state whether any documents were being withheld pursuant to the defendant’s objections to those discovery requests nor did the defendant identify any specific documents that had been withheld.  Rather, the defendant simply described how it had limited its search for documents that may have been responsive to those particular discovery requests.

For example, in response to two requests the defendant stated that it “limited its search to the e-mail .PST files for project management for the subject project, and has produced all non-privileged e-mails and attachments identified therein relating to the subject project.”  Likewise, in response to two other discovery requests that sought certain bid analyses, the defendant simply stated that it had limited its search to bid proposals received for a particular project between two dates and to the evaluation and recommendation letters submitted for those bid proposals.  Similarly, in response to a document request seeking documents reflecting an investigation regarding a particular incident, the defendant stated that it had limited its search for responsive documents to an OSHA investigation, its own investigation report, another entity’s investigation report, and e-mail .PST files for the project at issue.

The plaintiff filed a motion to compel and argued that the defendant failed to meet its obligations under Rule 34(b)(2)(C), which states that an objection “must state whether any responsive materials are being withheld on the basis of that objection.”  This language was added to Rule 34 by the amendments to the Federal Rules of Civil Procedure that became effective on December 1, 2015.

The court disagreed with the plaintiff and denied the motion to compel. The court explained that the Advisory Committee note on the December 1, 2015 amendments to Rule 34 provide that “[a]n objection that states the limits that have controlled the search for responsive and relevant materials qualifies as a statement that the materials have been ‘withheld.’”  The court found that the defendant had complied with its obligations under Rule 34 by stating how it had limited its search for responsive documents. The court also noted that if the plaintiff wanted to learn more about whether additional documents existed, the plaintiff could explore that issue in future discovery.

This decision is an important reminder of how the producing party generally has the final say in determining how best conduct its search for ESI.  Furthermore, the producing party’s ability to identify the limitations or parameters it placed on its search for responsive documents—as opposed to specifically identifying all documents withheld—may provide parties with an important and potentially cost-saving alternative in discovery.

Court Rejects Burdensome Argument As It Relates To Litigation Holds

The importance of timely implementing a litigation hold cannot be overemphasized.  In Bruner v. American Honda Motor Company, 2016 U.S. Dist. Lexis 62810 (S.D. Ala. May 12, 2016), the plaintiffs, who were involved in an accident involving a 2007 Honda Civic, sought potential e-mails related to airbags installed in Civics during a ten-year span encompassing the model year of the accident vehicle.  The defendant argued that under the applicable document retention policies, any such e-mails would have been destroyed after thirty days and, therefore, no such documents existed.  The defendant further asserted that it had undertaken a thorough search of its various electronic communication systems and had found no documents.

In response, the plaintiffs noted that the defendant’s contentions could not be accurate, as reports from one of the systems at issue, the Customer Retention Resolution System, made specific reference to e-mails but those e-mails were not produced.  Moreover, the plaintiffs noted that the defendant admittedly had not initiated a litigation hold, even though the judicial complaint had been filed a year earlier, and therefore potentially relevant e-mails continued to be destroyed.  The defendant’s only arguments in support of its failure to implement the litigation hold was that it believed its document retention policy was sufficient and (without any factual support) that initiation of a litigation hold would be unnecessarily burdensome.

The court disagreed, first noting that the defendant “has failed to offer any specific evidence as to how additional searches or a litigation hold will be especially burdensome or expensive.”  Then, citing Fed. R. Civ. P. 37(e)’s obligation on parties to preserve ESI, the court understandably concluded that “[t]he deletion of potentially relevant e-mails since the instigation of this action is unreasonable, considering their potential importance to this litigation.  Additionally, the deletion of some responsive e-mails does not absolve Defendant of its obligation to thoroughly search for still-extant ESI.”

As a result, the court granted the plaintiff’s motion to compel, ordering the defendant to undertake additional searches using plaintiff-provided search terms, and to immediately implement a litigation hold.  Fortunately for the defendant, the plaintiff did not seek attorney’s fees with their motion to compel and, following oral argument on the issue, the court concluded that none would be awarded.  Nevertheless, Bruner demonstrates the importance of why parties are well advised to initiate a litigation hold as early as possible and why an employer seeking to avoid production of ESI must be able to provide substantive support for its arguments regarding cost or other undue burden.

Federal Court In Washington Sanctions Attorney For Citing “Badly Out Of Date” Case Law

Defense counsel was sanctioned by a federal court in Washington for bringing a motion to compel in bad faith, with the court finding that defense counsel’s citation of case law analyzing a prior version of the Federal Rules of Civil Procedure was “inexcusable.”

In Fulton v. Livingston Fin. LLC, (W.D. Wash.), Defendants cited case law analyzing the version of Federal Rule of Civil Procedure 26(a)(1) that existed before the widely broadcasted amendments to that Rule took effect near the end of 2015.  Rule 26 governs the type of information that should be produced in discovery, and includes a list of elements for attorneys to contemplate when determining if a discovery request is proportional to the demands of the case.

In Fulton, Defendants had moved either to compel discovery or exclude certain medical evidence Plaintiff wished to present at trial.  Initially, the court found that found Defendants’ argument for seeking this information was unreasonable and constituted a misrepresentation to the court.  The court noted that the amendments to Federal Rule of Civil Procedure 26(b)(1) “dramatically changed” what information is discoverable, and therefore defense counsel’s citations to outdated case law was a misrepresentation that warranted sanctions.

Although defense counsel argued that the amended version of Rule 26 may not be applicable, the court found that the amendments apply to all proceedings pending as of the effective date of the new Rule insofar as it is “just and practicable.”  Therefore, the court concluded that defense counsel had misrepresented the scope of discoverable information when he failed to note the proportionality standard, but instead used the outdated law.

The court then ruled that it had an inherent power to sanction if it specifically found bad faith or conduct tantamount to bad faith, regardless of whether a specific court order was violated.  Because the court found that defense counsel recklessly misrepresented the law and the facts to the court in an effort to limit Plaintiff’s evidence at trial, sanctions were appropriate.

The sanctions were significant as they came in two forms.  First, the court imposed a cost and fees award, and also directed the sanctioned attorney to provide the offending briefing to his senior firm counsel along with an explanation that he was being sanctioned for citing “badly out of date” law.  Second, the attorney was subject to a potential future disclosure requirement designed to deter future transgressions.  These punishments, “strikes one and two”, were imposed to punish counsel as well as sufficiently inform future courts to properly sanction any further bad faith conduct.

This case vividly demonstrates how important it is for attorneys to stay abreast of changes in the Federal Rules of Civil Procedure as well as substantive law, or else face the real possibly that courts will punish those attorneys who fail to do so.

Federal Court In Washington Denies Motion To Compel Restoration Of Backup Tapes

A federal court in Washington recently denied a motion to compel the production of archived emails stored on backup tapes, rejecting the plaintiffs argument that the defendants culpability in failing to preserve the emails in a more accessible format outweighed the burden and cost to the defendant of restoration.

In Elkharwily v. Franciscan Health System (W.D. Wash.), the defendant did not maintain an email archive on its servers; rather, it saved its employees emails to physical backup tapes on a monthly basis. Without restoring the backup tapes, the only emails accessible to the defendant were those that remained in the relevant custodians live email accounts in other words, the emails that the users had not deleted from their inboxes.

Under Federal Rule of Civil Procedure 26(b)(2)(B), a party need not provide discovery … [when] not reasonably accessible because of undue burden or cost. The producing party has the burden of showing undue burden and cost, but, upon making that showing, Rule 26(b)(2)(B) places the burden on the requesting party to show good cause exists to produce the ESI in spite of the burden and cost.

The defendant in Elkharwily did not dispute that its backup tapes would contain at least some emails that were discoverable under Rule 26(b)(1), but it argued that obtaining those emails would impose undue burden and cost. Specifically, the defendant estimated that retrieving, restoring, and reviewing the emails archived on the backup tapes would cost $157,500.

The plaintiff did not contest the defendants cost estimate or otherwise dispute the defendants burden and cost arguments. Rather, the plaintiff argued that the defendant was at fault for the high cost of restoring the backup tapes, because the defendant should have preserved them in a more readily accessible format, starting from the first time that the plaintiff contended he had put the defendant on notice of the possibility of litigation.

The court found the plaintiffs blame-shifting to be unpersuasive, particularly in light of a dispute over when the defendant was on notice of the potential for litigation, for which the court found the defendants explanation to be more credible. What’s more, the plaintiff could not say with certainty what the emails on the backup tapes would show, or that any would even be responsive to the plaintiffs discovery requests. Accordingly, the court found that the plaintiff did not show good cause under Rule 26(b)(2)(B), and the court denied the motion to compel production of emails on the backup tapes. The court did allow the plaintiff to continue to pursue discovery of those emails, but only at his own expense.

This case provides important lessons for parties requesting ESI and for parties producing it. Parties requesting ESI should carefully examine cost estimates when faced with cost and burden objections, because the burden shifting that occurs following a showing of undue burden and cost makes a motion to compel much less likely to succeed. For parties producing ESI, this case provides yet another reminder that objections to discovery that would require restoration of physical backup tapes are often successful when they are supported by objective and credible cost estimates.