Finding Back-up Tapes “Not Reasonably Accessible” Court Declines to Compel Restoration of All but One Tape; No Sanctions for Deletion of Email Absent Evidence of Duty to Preserve or Showing of Bad Faith

Calixto v. Watson Bowman Acme Corp., 2009 WL 3823390 (S.D. Fla. Nov. 16, 2009)

In this breach of contract litigation, plaintiff filed a motion to compel defendant Watson Bowman Acme Corporation (“WABO”) to “remedy its spoliation of documents” by restoring and searching back-up tapes that potentially contained copies of emails that were deleted.  Plaintiff also sought sanctions for the alleged spoliation.  The court denied plaintiff’s motion to compel the restoration of all back-up tapes, following its determination that the burden and cost of such restoration rendered the documents not reasonably accessible and upon finding that plaintiff failed to establish good cause for such a search.  However, as to a one tape determined to potentially contain the relevant deleted emails, the court granted plaintiff’s motion and ordered the tape be restored and searched.  Regarding sanctions, the court denied plaintiff’s motion absent a clear indication of a duty to preserve at the time of the deletion and absent any evidence of bad faith.

In the course of discovery, plaintiff learned of the existence of back-up tapes in WABO’s possession which were dated from December 2004 through July 2007.  Plaintiff also learned that a member of WABO’s IT department, Molly Young, had deleted the emails of an important custodian following his departure from the company in August 2004.

Plaintiff filed a motion to compel. Per the court, the questions to be resolved in analyzing plaintiff’s motion were:  1) whether WABO’s alleged destruction of the emails justified an order requiring WABO to reconfigure and search any or all of its back-up tapes and 2) whether spoliation sanctions were warranted.

To assist in its determination, the court ordered WABO to submit an affidavit explaining how it conducted its document search, what documents had been deleted from the system and why, and what if any options existed for recovery of those documents.  Accordingly, WABO submitted the affidavit of Molly Young who asserted that the emails were deleted by her in furtherance of her routine practice of deleting the emails of departed employees – a routine she later testified that she had engaged in since approximately 1997 or 1998 and that she undertook on “her own initiative.”  She further asserted that she was unaware of the pending litigation at the time of her deletion.  Regarding the likelihood that the back-up tapes contained non-duplicative, relevant information, Young testified at an evidentiary hearing as to WABO’s extensive collection and preservation efforts (upon learning of the litigation) and, as noted by the court, implied that there were likely no new responsive documents on the back-up tapes at issue.

Turning to its analysis, the court laid out the parameters of Fed. R. Civ. P. 26(b)(2)(B) which obviates a party’s obligation to produce data from sources deemed “not reasonably accessible” because of undue burden or cost.  Accordingly, the court determined that the back-up tapes were “not reasonably accessible” upon WABO’s showing that the cost of restoration and keyword searching alone would be approximately $40,000.

Turning then to the second tier of analysis pursuant to the relevant rule, the court addressed the question of whether, despite a showing that the tapes were not reasonably accessible, plaintiff had nonetheless demonstrated good cause for ordering the tapes’ restoration.  Outlining the nature of the inquiry, the court stated:

The Court is well aware of the electronic discovery analysis set forth by the Zubulake v. UBS Warburg, LLC, opinions and subsequent cases, as well as of the ideals embodied in the Sedona Principles, and fully appreciates the considerations raised by these pioneering writings.  Nevertheless, in this matter, the Court need not travel down the Zubulake road because the question before the Court is an elementary one that must be answered in all discovery matters, regardless of whether the medium of the discovery sought happens to be electronic in nature:  whether we can reasonably anticipate that the information to be gleaned from the discovery sought will be relevant and non-duplicative.  After all, electronic discovery is, at bottom, just discovery, and, as Rule 26(b)(2)(B) makes clear, the usual limitations to which all discovery is subject apply with equal force to electronic discovery.

The court determined plaintiff had not established good cause, noting plaintiff’s lack of objection to the adequacy of WABO’s search efforts.  Nonetheless, the court ordered the restoration and search of one particular back-up tape which was determined to have the potential to contain the emails that were routinely deleted and other discoverable records.

Turning to the question of sanctions for the deletion of a relevant custodian’s emails, the court first discussed its inherent power to sanction litigants, particularly with an adverse inference instruction, but noted the necessity of a finding of bad faith.  Following a discussion of several cases in which and adverse inference was considered, the court concluded:

Taken together, these cases demonstrate that bad faith can be found based on direct evidence or on circumstantial evidence where certain factors converge.  More specifically, where no direct evidence of bad intent exists, in this Circuit, bad faith may be found on circumstantial evidence where all of the following hallmarks are present: (1) evidence once existed that could fairly be supposed to have been material to the proof or defense of a claim at issue in the case; (2) the spoliating party engaged in an affirmative act causing the evidence to be lost; (3) the spoliating party did so while it knew or should have known of its duty to preserve the evidence; and (4) the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator.

Addressing each factor in turn, the court first found that the documents “may fairly be supposed to have contained information material to the matters at issue in this case.”  The court also found the spoliation was intentional, pursuant to Young’s admission that she purposefully deleted the emails in furtherance of her routine practice.  However, the court found that neither of two letters presented by the plaintiff triggered WABO’s duty to preserve prior to its deletion of the emails in question.  Moreover, “even if it had” the court found Young’s assertions that her deletion was undertaken in furtherance of a routine practice and without knowledge of pending litigation were credible.  Accordingly, there was no requisite evidence of bad faith. Plaintiff’s motion for spoliation sanctions was denied.

The court’s opinion also discussed plaintiff’s motion for letters of request pursuant to the Hague Convention on the Taking of Evidence for subpoenas duces tecum to proceed with discovery as to several foreign corporations.

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