Court Defers Ruling on Whether Additional Email Searches Are Necessary, Ordering Producing Party to Submit Detailed Affidavit re Scope of Search

Peskoff v. Faber, 2006 WL 1933483 (D.D.C. July 11, 2006)

Plaintiff Jonathan Peskoff sued to recover damages for financial injury resulting from defendant Michael Faber’s operation of a venture capital fund, called NextPoint Partners, LP, and the fund’s related entities. NextPoint GP, LLC ("NextPoint GP") was the general partner of the venture capital fund. Both Peskoff and Faber were managing members of NextPoint GP. Peskoff alleged fraud and related claims.

In this opinion, Magistrate Judge John M. Facciola ruled on Peskoff’s motion for an order compelling Faber to produce additional emails sent to and authored by Peskoff while he was employed at NextPoint Management. During the course of discovery, Faber had produced computer disks containing documents, including emails, that were obtained from Peskoff’ s computer, but the disks did not include any emails that Peskoff received or authored between mid-2001 and mid-2003. In moving to compel, Peskoff argued that Faber had failed to adequately explain why these two-years worth of emails were not produced, where the emails might be located within NextPoint’s computer system or archives, or what specific steps were taken to locate the emails.

In opposition, Faber contended that "no electronic documents have been withheld" and that, if the sought after emails were not on the computer disks provided, then they no longer existed. Faber explained that NextPoint Management subleased space and its electronic files were stored on the sublessor’s server. When Peskoff’ s employment ended, counsel "caused the creation of an archive of all Peskoff electronic files, including documents stored on his computer hard drive, email, and any other Peskoff electronic documents." Faber stated that the entire archive was produced to Peskoff.

The court observed that the parties’ disagreement turned no on whether the email was relevant, but on whether the missing emails still existed and could be located. It found that the sought after emails fell into three categories: emails to Peskoff, emails from Peskoff, and emails about Peskoff, and could be located in several possible places:

First, the e-mail account that Peskoff used while working at NextPoint Management might still contain the e-mails in his inbox, sent items, trash, or other named folders.

Second, the e-mails may be in the inbox, sent items, trash, and other folders of e-mail accounts of other employees, agents, officers, and representatives of the NextPoint entities, who may have been the author or recipient of the e-mails at issue.

Third, the e-mails may be on the hard drive of Peskoff’s computer or within any depository for NextPoint e-mails. The e-mails may be accessible from those locations through simple search technology, such as by conducting a key word search (i.e., a search on "Peskoff" or his e-mail address). Thus, even if the e-mails cannot be located by searching particular files, they yet may be located on the hard drive or other depository by finding all files where a particular word appears.

Fourth, with the help of a computer forensic technologist, the e-mails, even if deleted, may be recoverable from other places within Peskoff’s computer, such as its "slack space." See United States v. Triumph Capital Group, Inc., 211 F.R.D. 31, 46 n. 7 (D. Conn. 2002) ("’Slack space’ is the unused space at the logical end of an active file’s data and the physical end of the cluster or clusters that are assigned to an active file. Deleted data, or remnants of deleted data can be found in the slack space….").

Finally, the e-mails may even be recoverable from periodic backup tapes or disks made of [the sublessor’s] server. See Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 319 (S.D.N.Y. 2003).

However, based on the information before the Court, I cannot determine at what level Faber searched for the requested Peskoff e-mails. All I know is that an archive was created "of all Peskoff electronic files, including documents stored on his computer hard drive, e-mail, and any other Peskoff electronic documents." Opp’n at 6. This statement tells me little, if anything about the scope of Faber’s search.

Accordingly, the court ordered Faber to file within ten days a detailed affidavit specifying the nature of the search it conducted. It further ruled that Peskoff would have ten business days therefrom to respond to the adequacy of the search described in that affidavit. Once the court had received the parties’ submissions, it would consider whether additional searches were necessary. The court noted that it may have to hold an evidentiary hearing during which testimony could be obtained from Faber’s employees and other witnesses about the effectiveness and cost of any additional searches.

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