Cost to Restore Inaccessible Backup Tapes Exceeds Possible Yield of Relevant Information

Dec 12 2007

Palgut v. City of Colo. Springs, 2007 WL 4277564 (D. Colo. Dec. 3, 2007)

In this employment discrimination litigation, the magistrate judge made a number of findings and conclusions relevant to several outstanding e-discovery disputes. Among other things, the judge found:

That defendant conducted “an adequate and full search of all ESI formatted documents that may be relevant to the issues before this court and which are in [defendant’s] possession.” Nevertheless, defendant agreed to conduct an additional search, in accordance with the parties’ stipulation, a copy of which is available here. Among other things, defendant agreed to conduct an additional electronic search of ESI, using keyword searches agreed upon by the parties.
“That the 2006 Amendments to Fed. R. Civ. P. 34 simply clarify ‘that discovery of electronically stored information stands on equal footing with discovery of paper documents.’ See Advisory Committee’s Note on 2006 Amendments. Consequently, without a qualifying reason, plaintiff is no more entitled to access to defendant’s electronic information storage systems than to defendant’s warehouses storing paper documents[.]”

“That … ‘[l]ike the other discovery rules, Rule 34(a) allows the responding party to search his records to produce the required, relevant data. Rule 34(a) does not give the requesting party [i.e., the Plaintiff in this case] the right to conduct the actual search.’ In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir. 2003)[.]”
That plaintiff failed to meet her burden of proof for a third party computer forensic expert to be appointed by the court to examine defendant’s computer systems.
That backup tapes dating back three to four years, which were kept by defendant in the event of a major disaster, were “not currently accessible by Defendant City of Colorado since they do not have the hardware to access them.”
Moreover, since defendant had agreed to do an additional search for ESI, “in weighing the possible yield of relevant information from such ‘back up tapes’ in comparison to the cost for such restoration, the cost of restoration outweighs the possible yield of relevant and probative information[.]”
That under the facts and circumstances of the case, the trigger date for defendant’s duty to preserve evidence was February 14, 2006, when defendant received plaintiff’s counsel’s “litigation hold letter,” and not June 20, 2006, when defendant was served with plaintiff’s complaint.