Linnen v. A.H. Robbins Co., 1999 WL 462015 (Mass. Super. June 16, 1999)
Plaintiffs moved to compel the production of email restored from defendant’s backup tapes. The estimated cost of restoration of the tapes and retrieval of responsive email ranged between $300,000 to over $1.4 million.
The court noted:
While the court certainly recognizes the significant cost associated with restoring and producing responsive communications from these tapes, it agrees . . . that this is one of the risks taken on by companies which have made the decision to avail themselves of the computer technology now available to the business world. To permit a corporation such as [defendant] to reap the business benefits of such technology and simultaneously use that technology as a shield in litigation would lead to incongruous and unfair results.
1999 WL 462015, at *6 (citation omitted). The court concluded that the sensible course of action would be to await the outcome of the discovery process that was then underway in a related Federal Court Multi-District Litigation. There, defendant had agreed to restore a sampling of the tapes and to bear the initial costs associated with the restoration.
In addition, the court imposed monetary sanctions on defendant for various discovery abuses. In light of defendant’s uncooperative conduct in relation to the email discovery issue, the court determined that it was appropriate to require defendant to bear all plaintiff’s costs and fees associated with the issue. The court further agreed that a jury instruction on spoliation was appropriate, and directed the parties to submit proposed instructions prior to trial. The basis for the instruction was defendant’s failure to preserve potentially relevant backup tapes. The court observed: “The recycling of the back-up tapes is, under normal circumstances, a widely accepted business practice as, in the absence of a disaster which necessitates the use of the computer tapes, there is no need to keep them for an indefinite period of time.” Id. at *10. However, defendant’s customary recycling of back-up tapes for the electronic mail system should have been suspended at least while the ex parte preservation order was in effect, and after receipt of plaintiffs’ document requests.