Electronic Discovery Law
Magistrate Judge Facciola Orders Production of Email from Backup Tapes in Light of Party's Failure to Suspend Email System's Automatic Deletion Feature
In this case, disabled plaintiffs claimed that WMATA failed to provide adequate paratransit services through the MetroAccess program and that the service provided was materially inferior to the services available to people without disabilities. Discovery was heavily litigated, and Magistrate Judge John M. Facciola addressed several discovery motions in this opinion, one of which related to the production of email from backup tapes.
Specifically, plaintiffs sought an order requiring WMATA to produce backup tapes of certain electronic documents written and received since the filing of the lawsuit. Plaintiffs argued that WMATA had failed to properly instruct employees to retain potentially responsive electronic documents and therefore should pay to create the backup tapes. “Remarkably, although the complaint in this case was filed on March 25, 2004, WMATA acknowledges it did nothing to stop its email system from obliterating all emails after sixty days until, at the earliest, June of 2006.” WMATA presented testimony that its email system was programmed with an automatic deletion feature that deleted any email after it had been in existence for sixty days, without regard to whether the email was unread, in a folder that the sender or recipient has created, or in the user's "Sent" or "Trash" folders. Further, while the user could defeat the feature by archiving the email, i.e., placing it in a location of the user's choosing in an encrypted format, the majority of WMATA employees apparently did not do this. “As a result, with the exception of three individuals, there has been a universal purging of all possibly relevant and discoverable emails every sixty days at least since the complaint was filed three years ago.”
The court took a dim view of WMATA’s failure to suspend the automatic deletion feature, finding it “indefensible.” The court noted that the December 2006 amendment to Fed. R. Civ. P. 37 “does not exempt a party who fails to stop the operation of a system that is obliterating information that may be discoverable in litigation.” It cited the accompanying Advisory Committee Notes, and emphasized that the rule requires good faith in the routine operation of an information system, which “may involve a party’s intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation.”
The court concluded that Rule 37 did not apply in any event, since plaintiffs were not seeking sanctions but that WMATA be required to search the backup tapes for discoverable information previously deleted. Plaintiffs proposed that the backup tapes be restored so that, once rendered searchable, their contents can be searched by a keyword analysis to find the emails of several persons they have identified by name. Plaintiffs requested that, once the emails were found, they be converted into TIF format, and that production be done on a rolling basis.
WMATA objected on the grounds of burden and expense, insisting that the backup tapes were “not reasonably accessible” and that there was little reason to suppose that they would produce relevant information. The court rejected WMATA’s argument:
While the newly amended Federal Rules of Civil Procedure initially relieve a party from producing electronically stored information that is not reasonably accessible because of undue burden and cost, I am anything but certain that I should permit a party who has failed to preserve accessible information without cause to then complain about the inaccessibility of the only electronically stored information that remains. It reminds me too much of Leo Kosten's definition of chutzpah: "that quality enshrined in a man who, having killed his mother and his father, throws himself on the mercy of the court because he is an orphan."
The court noted that Rule 26(b)(2)(B) makes clear that a court may nevertheless order discovery from sources that are not reasonably accessible upon a showing of good cause and after considering the limitations of Rule 26(b)(2)(C). It cited the Advisory Committee Notes and observed that the specific considerations that the court should take into account before it orders such discovery may include:
(1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties' resources.
The court found that application of these factors made for an “overwhelming” case for production of the backup tapes. Accordingly, the court granted plaintiffs' motion and ordered counsel to meet and confer and prepare a stipulated protocol as to how the search would be conducted. The protocol was due within two weeks, and the court advised that the protocol should speak to at least the following concerns:
1. How will the backup tapes be restored?
2. Once restored, how will they be searched to reduce the electronically stored information to information that is potentially relevant? In this context, I bring to the parties' attention recent scholarship that argues that concept searching, as opposed to keyword searching, is more efficient and more likely to produce the most comprehensive results. See George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System Adapt? 13 Rich. J.L. & Tech. 10 (2007).
3. How will the privilege review be conducted and do the parties contemplate an agreement authorized by Rule 26(b)(5)(B)?
4. How will the privilege claim be made? How will a privilege log be created and what will it have to contain to permit me to rule on the privilege claims asserted?
5. If there is to be rolling production, what deadlines are the parties going to set for production and the following related deposition?
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