Wells v. Xpedx, 2007 WL 1200955 (M.D. Fla. Apr. 23, 2007)
In this employment discrimination case, plaintiff sought the production of email of seven Xpedx employees during various time periods. Plaintiff contended that defendant implemented a new email deletion policy in 2003, under which emails were deleted within 90 days of creation, unless designated for retention. Plaintiff asserted that, under defendant’s policy, an email "that is automatically deleted by the system can not be restored except with the expressed consent of a member of the company’s legal or tax departments." Plaintiff further contended that defendant’s archive system, "legal hold" folders, and defendant’s permanent back-up computer system may contain copies of the requested emails. Thus, plaintiff sought permission to take the deposition of defendant’s corporate representative for information technology regarding defendant’s email deletion policy and procedures for retrieving deleted emails. Plaintiff argued that this would allow the parties to determine the existence of deleted emails and if defendant destroyed any evidence relating to plaintiff’s claims.
In response, defendant argued that it had produced all relevant emails. Defendant also stated that, as a result of its email policy, any emails that were not specifically preserved within 90 days of their creation were deleted. Defendant further argued that a deposition to inquire about its email deletion policy would be redundant and unnecessary because defendant had already provided plaintiff with a copy of its email deletion policy.
The court observed that electronic data, such as emails, are discoverable, and that “[d]eleted emails are, in most cases, not irretrievably lost.” The court noted that “[d]eleted emails may remain on a computer hard drive, servers or retained on back-up tapes.” Citing Peskoff v. Faber, 240 F.R.D. 26 (D.D.C. 2007), the court stated: “The producing party has the obligation to search available electronic systems for deleted emails and files.”
The court found that the record was insufficient to determine whether defendant had produced all responsive documents to plaintiff’s requests, and whether responsive documents existed elsewhere in defendant’s records which might be accessed electronically:
Although Defendant alleges that all responsive emails have been produced to Plaintiff, Defendant has not provided an affidavit or other specific evidence regarding the scope of Defendant’s search of its electronic depositories for responsive documents, including information concerning the source of the electronically stored information by category and type. Nor has Defendant provided adequate information regarding Defendant’s email deletion policy, or the procedures for storage and retrieval of deleted emails, files, hard drives, archives and backup tape systems to allow Plaintiff to evaluate the likelihood of finding responsive information. Thus, the court will grant Plaintiff’s request to take the deposition of Defendant’s corporate representative for information technology, not to exceed four hours. To minimize costs, Plaintiff shall conduct this deposition telephonically and within the next 30 days.
The court further directed that, after the deposition, the parties should confer in good faith in an effort to resolve their disputes. If, after conferring, the parties were unable to resolve the issues raised in plaintiff’s motion concerning the email discovery requests, plaintiff was directed to file a notice with the court describing the remaining disputes.