Court Defers Ruling on Defense Request to Inspect Hard Drives and for Sanctions, Ordering Plaintiff to Submit Affidavit Detailing Why Certain Emails were “Unloadable” and Efforts Taken to Retrieve the Information

U & I Corp. v. Advanced Med. Design, Inc., 2007 WL 4181900 (M.D. Fla. Nov. 26, 2007)

In this breach of contract case, plaintiff sought a protective order blocking the production of documents by a non-party in response to defendant’s subpoena.  The court found that plaintiff had not established good cause for the protective order, in part because the time frame of the requests was reasonable.  The court also noted that, because plaintiff’s 2004 emails were allegedly unavailable (discussed below), defendant had no other way to obtain some of the information.  The court thus denied the motion for protective order; it also denied the non-party’s motion to quash, which was based on general relevancy and (unsupported) undue burden arguments.

At the same time, defendant sought an order compelling plaintiff to produce the hard drives of certain employees for inspection by an independent expert, and to produce all responsive 2004 emails.  Defendant also sought various sanctions for plaintiff’s alleged failure to produce the material in accordance with the court’s prior order on the subject.

Plaintiff responded that it had produced all responsive documents in its possession.  However, it explained that, due to a computer error following a server change that occurred prior to litigation, its 2004 emails were "unloadable.”  It also claimed that it had no hard copies of any 2004 emails.  As such, plaintiff contended that it could not produce any 2004 emails.

In its ruling, the court noted that in its response to defendant’s motion for sanctions, plaintiff had stated that defendant "is able to obtain these potentially relevant e-mails via third party discovery and its own records."  The court further observed that defendant had attempted to obtain “this exact third-party discovery” through the subpoena to the non-party which plaintiff had unsuccessfully moved to quash.

The court deferred ruling on defendant’s motion to compel inspection of the hard drives of plaintiff’s computers pending the non-party’s production of 2004 e-mails under its control that are responsive to the subpoena issued by defendant.

Regarding defendant’s sanctions request, the court ruled as follows:

[I]n its discovery responses U & I did not inform AMD that its 2004 e-mails were unobtainable; instead, U & I’s counsel waited until after the time period had passed for it to comply with the court’s order to inform AMD of his client’s computer problems.  As discussed below, the undersigned defers ruling on the issue of whether U & I should be compelled to produce the hard drives of three of its employees.  In general, however, although U & I asserts the computer error that deleted all 2004 e-mails was made in good faith, without detail of how the error occurred or the steps U & I took to retrieve the information, the court cannot evaluate this assertion.  U & I offers instead the conclusory statement that the discovery dispute is genuine and that any noncompliance on its part is harmless.

Rule 37(f), Fed.R.Civ.P., which governs a parties’ failure to cooperate during discovery, states that "absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."  According to the Advisory Committee Note to Rule 37(f), Fed.R.Civ.P., this subsection applies to information lost due to the routine operation of an information system only if the operation was in good faith.  An analysis of good faith depends on the circumstances of each case.  Fed.R.Civ.P. 37(f), Advisory Committee Note.

Before determining whether to credit U & I’s statement that U & I’s "unloadable" 2004 e-mails are "forever lost" and are therefore unavailable to either party, the court requires more specific information on U & I’s efforts to obtain the information.  Thus, the undersigned directs U & I to submit the affidavit of U & I’s corporate representative within 10 days of the date of this order detailing 1) why the e-mails are "unloadable" and 2) the efforts the company has undertaken to retrieve the information.  Accordingly, ruling is deferred on this issue.

(Citations to the record omitted.)

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