Electronic Discovery Law
Court to Decide Whether to Compel Restoration of Backup Tapes via Marginal Utility Analysis Following a Test Run
McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001)
In employment discrimination suit, plaintiff requested that the Department of Justice search its computer backup system for evidence of retaliation. The court stated that there was no controlling authority for the proposition that restoring all backup tapes is necessary in every case. It observed:
[M]aking the producing party pay for all costs of restoration as a cost of its "choice" to use computers creates a disincentive for the requesting party to demand anything less than all of the tapes. American lawyers engaged in discovery have never been accused of asking for too little. To the contrary, like the Rolling Stones, they hope that if they ask for what they want, they will get what they need. They hardly need any more encouragement to demand as much as they can from their opponent.
202 F.R.D. at 33. The court described problems with the converse solution of making the requesting party pay for the discovery, and concluded that the fairer approach borrows, by analogy, from the principle of marginal utility. It opined that economic considerations must be pertinent if the court is to remain faithful to its responsibility to prevent undue burden and expense. It cautioned:
If the likelihood of finding something was the only criterion, there is a risk that someone will have to spend hundreds of thousands of dollars to produce a single e-mail. That is an awfully expensive needle to justify searching a haystack. It must be recalled that ordering the producing party to restore backup tapes upon a likelihood that they will contain relevant information in every case gives the plaintiff a gigantic club with which to beat his opponent into settlement.
The court "decided to take small steps and perform, as it were, a test run." Id. at 34. The government was ordered to perform a backup restoration of the emails attributable to a supervisor's computer during a one-year period, and search the restored emails for any document responsive to plaintiff's requests. Upon completion of the search, the government was to file a comprehensive, sworn certification of the time and money spent and the results of the search. At that time, the court would permit the parties an opportunity to argue why the results and the expense do or do not justify any further search of backup tapes.
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