Additional Information Needed Before Court Will Order Production of Email from Backup Sources

Baker v. Gerould, 2008 WL 850236 (W.D.N.Y. Mar. 27, 2008)

Plaintiff, an employee in the New York State Department of Environmental Conservation (“DEC”), alleged that defendants failed to promote him to the position of Captain in retaliation for having exercised his constitutional rights.  Plaintiff moved to compel the production of email between and among the parties, challenging the adequacy of defendants’ production.

Following oral argument on the motion, the court directed defendants to submit an affidavit describing the search undertaken to locate the requested emails.  In response, defendants filed an affidavit of the Director of the DEC’s Division of Information Services.  Instead of explaining the steps undertaken to search for the emails, however, the affidavit only described the work that would be entailed in restoring deleted data from backup sources.  Although the director evidently assumed that as a result of the systematic, automatic deletion of unsaved emails generated more than 12 months earlier, any additional responsive emails between the parties were not reasonably accessible, his affidavit did not address what efforts, if any, were employed to search for such emails from accessible sources.  For example, the affidavit did not identify whether any search was undertaken to locate archived or saved emails, which, as he explained, was one method available to users to avoid deletion of emails.

After reviewing the affidavit, counsel for plaintiff renewed his argument that defendants should be compelled to search for additional emails, even if such a search would require defendants to expend resources in order to restore deleted data.

The court observed that, where relevant ESI is not reasonably accessible, the responding party may resist its production upon a showing that such information is “not reasonably accessible because of undue burden or cost.”  Fed. R. Civ. P. 26(b)(2)(B).  Even if such a showing is made, the court retains the discretion for “good cause” to order disclosure of such material.  The court noted that, the two-fold question of whether inaccessible sources of electronically stored information should be searched and, if so, which party should bear the associated costs, is not reached unless the court is first satisfied that the request seeks relevant information that is not available from accessible sources.  The court stated that this is because relevant considerations in determining whether to order a search of inaccessible sources include “the quantity of information available from other and more easily accessed sources” and “the likelihood of finding relevant information that seems likely to have existed but is no longer available on more easily accessed sources.”  (Citations omitted.)

The court found that there was insufficient information in the record to determine the adequacy of defendants’ search for the requested emails from accessible sources:

Although it is clear that some email communications have been turned over, the source or sources of those communications is not clear.  For example, it is unknown whether those emails were recovered from existing hard drives, backup hard drives or traditional files used to maintain paper records.  It is likewise unknown whether computer and/or paper files have been searched for all defendants, some of whom are no longer employed by the DEC, but some of whom are.

The court stated that, in the absence of this information, it could not reasonably resolve whether defendants should be put to the expense and effort of restoring deleted electronic communications spanning a multi-year period.  Thus, it ordered the parties to take several additional steps:

(1) By April 6, 2008, counsel for defendants shall identify in writing the name(s) and position(s) of the individual(s) with knowledge concerning the steps undertaken to search for responsive emails from accessible sources.

(2) By April 13, 2008, counsel for plaintiff may serve a notice to depose the identified individual(s) concerning the search.  Such a deposition or depositions, if requested, shall be completed by May 8, 2008.

(3) By April 13, 2008, counsel for plaintiff also may serve a notice to depose Leslie Brennan concerning the facts and opinions asserted in his affidavit.  Such a deposition, if requested, shall be completed by May 8, 2008.

(4) At the conclusion of the discovery outlined above, counsel for plaintiff may file a motion seeking to require a search of any sources not reasonably accessible that counsel in good faith believes is justified.

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