You Get What You Pay For: Court Allows Access to Defendant’s Relevant Backup Tapes and Email Archives provided Plaintiff is Willing to Bear the Costs

Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009)

This case arose from plaintiff’s claim that defendant’s product caused plaintiff to develop a degenerative cartilage condition (chondrolysis), that defendant was aware of the risk of such a condition, and that defendant is therefore liable for plaintiff’s damages resulting from the condition.  In the course of discovery, plaintiff became concerned that defendant’s production of electronic discovery was incomplete and filed a motion to compel.  Acknowledging the validity of plaintiff’s concern but noting the unlikely possibility that any material new documents were located in defendant’s email archives or on disaster recovery tapes, the court concluded that plaintiff may, but was not required to, hire an outside vendor “for the purpose of confirming the completeness of [defendant’s] production, at is own expense” subject to specific conditions enumerated by the court.

In response to plaintiff’s discovery requests, defendant objected to searching “archived electron [sic] records” stating that “responsive documents include ‘internal email communications which may be held by [defendant] in disaster recovery back up storage [, which] is not reasonably accessible, and plaintiff is unable to demonstrate the need and relevance that outweigh the costs of retrieving and processing.’”  Additionally, throughout the course of litigation, defendant repeatedly assured plaintiff that it was not necessary to conduct “in-depth” discovery of archived materials because “any relevant information could be gleaned through employee depositions and the notebooks that they kept which contained printed versions of any germane materials.”  In the course of discovery certain documents were discovered indicating that defendant’s knowledge of the relevant risks of its product may have existed earlier than originally represented by defendant’s employees at deposition.  That evidence, combined with “certain purported irregularities in [defendant’s] production of electronic discovery” lead plaintiff to believe that relevant documents existed that had not been produced.  Accordingly, plaintiff filed his motion to compel.

The court agreed that the record indicated the existence of responsive documents that had not been produced and noted that the omission of suspected relevant but undisclosed material was “especially glaring” considering defendant’s assurances that any relevant information could be gleaned through employee depositions and other materials.  Despite acknowledging the possibility of the existence of additional responsive information, the court indicated the need to limit plaintiff’s relief in light of the questionable likelihood that the information sought would be found in the email archives or on the disaster recovery tapes (and the questionable value of such information in light of the timing of plaintiff’s claim) and the inability to accomplish the requested searches so close in time to trial.

Seeking to balance the potential relevance of the discovery with the burden and cost of production to the defendant, the court concluded that plaintiff “may, but is not required to, hire an outside vendor for the purposes of confirming the completeness of [defendant’s] production, at its own expense” and subject to the following conditions established by the court:

1. Plaintiff’s search may encompass, at most, five of Breg’s back-up tapes. Plaintiff shall provide Breg with a single list of those tapes that it wishes to search, to avoid unnecessarily burdening Breg with the responsibility to make multiple trips to its off-site storage facility.

2. Breg must be provided with the results of the search no later than June 26, 2009; and, Breg must review those documents and deliver all discoverable materials to Plaintiff’s counsel no later than July 1, 2009.

3. The search shall encompass the email archives of the seven Breg employees identified by the parties as having participated in potentially relevant communications.

4. The search shall be constrained to prevent interfering with Breg’s preparation for trial; and, therefore, the search shall include a limited number of search terms, including the word "chondrolysis." [Footnote omitted.]

5. The documents resulting from the search shall be segregated based on whether the document resulted from a search of the word "chondrolysis," as opposed to another keyword.

6. Because the backup tapes contain confidential data and are preserved by Breg for disaster recovery purposes, the search shall be subject to the terms of a confidentiality agreement; and, the tapes shall be returned to Breg in the same condition that they were received.

A copy of the full opinion is available here.

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