In re Veeco Instruments, Inc. Sec. Litig., 2007 WL 983987 (S.D.N.Y. April 2, 2007)
In this securities class action, defendants resisted lead plaintiff’s motion to compel production of email and other non-privileged documents. Defendants argued that restoring the backup tapes and searches involved would be extraordinarily burdensome and costly, and that such costs should be shifted to plaintiff. The court observed that, “[s]urprisingly,” the parties had not entered into an agreed protocol for electronic discovery, nor had they discussed the issue of searching backup tapes. It also found that, given the lack of discussion on the subject, it would be unreasonable for plaintiff to assume that backup tapes were being searched.