Archive: May 7, 2007

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Court Uses Marginal Utility Test to Deny Motion to Compel Production of Deleted Emails from Backup Tapes

Court Uses Marginal Utility Test to Deny Motion to Compel Production of Deleted Emails from Backup Tapes

Oxford House, Inc. v. City of Topeka, 2007 WL 1246200 (D. Kan. Apr. 27, 2007)

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.
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