Electronic Discovery Law
Court Uses Marginal Utility Test to Deny Motion to Compel Production of Deleted Emails from Backup Tapes
This litigation arose from the City of Topeka's decision to deny plaintiff’s request for conditional use permits. Plaintiff propounded interrogatories seeking information related to the City’s decision on the permits, specifically requesting information about, among other things: “Each and every communication related to the application expressed in instant messages, either saved on a data recording medium or not saved.” In response, the City referred plaintiff to certain documents that had been produced. Plaintiff asserted that the documents did not sufficiently respond to the interrogatory, and argued that the City failed to identify specific emails or ex parte electronic communications, resulting in an incomplete discovery response. Plaintiff moved to compel further responses. The City countered that: (1) it possessed no additional documents or information responsive to the requests, and (2) the requests were unduly burdensome. The court sided with the City on both arguments, and denied the motion to compel.
Existence of additional responsive documents:
The City argued that relevant email ex parte communications made by members of the Topeka councilmen were no longer available because such communications had been deleted. The City supported the assertion with the affidavits of three City Councilmen who represented that they either did not receive via email any ex parte communications with regard to the issue, or that they had deleted any ex parte communications received on the subject. As such, the information was no longer available.
The court accepted the City’s contention, and rejected plaintiff’s argument that the deletion of such emails constituted spoliation. The court found that the deletions occurred before any duty to preserve arose, since they occurred before the City had received plaintiff’s demand letter.
The court also accepted the City’s contention that the emails at issue were no longer recoverable because the City’s backup tapes are rotated every six weeks and all previous data is overwritten by subsequent backup tapes. In addition, the court stated there was no evidence in the record that, at the time the City received plaintiff’s demand letter, the backup tapes in the server’s system contained any allegedly deleted emails from the relevant time period.
In the court's view, even if such back up tapes were conclusively shown to possess the deleted e-mail communications, “as a general rule, a party need not preserve all backup tapes even when it reasonably anticipates litigation.” When parties put a litigation hold policy on destruction of documents in response to pending litigation, “that litigation hold does not apply to inaccessible back-up tapes ( e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company's policy.” The record in this case indicates that the back-up tapes are used for disaster recovery purposes. Therefore, it is the court's view that defendant had no duty prior to [receipt of plaintiff’s demand letter], to retain or recover the deleted electronic messages.
(Footnote omitted.) Accordingly, the court concluded that the City had provided a full and complete response to Plaintiffs' Interrogatory No. 4 by providing plaintiffs with all existing responsive documents.
The court also agreed that plaintiff's requests for deleted email would otherwise be unduly burdensome. It noted that a party opposing a discovery request on this basis has “the burden to show facts justifying their objection by demonstrating that the time or expense involved in responding to requested discovery is unduly burdensome.” It observed that, in considering such an objection, the court should allow such discovery unless “the hardship is unreasonable in light of the benefits to be secured from the discovery.” The “mere fact that compliance with an inspection order will cause great labor and expense or even considerable hardship and the possibility of injury to the business of the party form whom discovery is sought does not itself require denial of the motion.” (Footnotes and citations omitted.)
The court further observed that other federal courts have held that, while discovery of deleted electronic records is certainly permissible, a cost-benefit analysis should be conducting prior to discovery being ordered to determine if such discovery is indeed appropriate. It stated: “One such cost-benefit analysis often utilized by federal courts is the marginal utility analysis. In using this analysis, ‘the court must assess the likelihood that the source to be searched will produce information that is relevant to a claim or defense. The greater the likelihood that it will, the fairer it is to require the producing party to bear the expense.’” (Footnotes and citations omitted.)
The court noted that, although the City admitted that there were technological means to potentially retrieve deleted electronic communications, it maintained that such a search would be unduly burdensome and costly. Specifically, to retrieve such data from the back ups, the City estimated that an initial review of such back up tapes would cost $100,000 plus residual costs.
The court agreed that the cost of retrieval of data would be high, but noted that cost was not dispositive: “consideration must also be given to the potential efficacy of a technique seeking discoverable information.” The court found such efficacy was minimal at best:
The City of Topeka continually rewrites new data over the prior date on its back-up tapes. Therefore, unless the latter back-up tape did not write as close to the end as the previous back up tape, this information has likely already been written over. As the likelihood of retrieving these electronic communications is low and the cost high, this court further finds that the unanswered portion of Plaintiffs' Interrogatory No. 4 is unduly costly. The court thereby denies plaintiffs' motion to compel further responses to Plaintiffs' Interrogatory No. 4.
The court went on to deny that portion of plaintiff’s motion to compel addressing a similar request for production of email communications.
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