Rhode Island's federal district court has held that plaintiffs have failed to meet the "proportionality" test included in Rule 26 to compel defendants to search backup tapes for emails they may contain. The court said the relatively high cost of the search compared to the low likelihood the tapes contained email not already produced weighed against requiring defendant to search the tapes.
The dispute arises in the context of constitutional and civil rights claims brought against the State of Rhode Island, the Department of Children, Youth and Families ("DCYF") and state employees respecting DCFY's alleged negligence in its administration of the State's foster care program for children. The negligence allegedly resulted in foster children being abused. Plaintiffs filed suit in 2007. Two DCYF employees involved in the foster care program subsequently left DCYF and their email accounts were destroyed but may still exist on backup tapes. The State implemented a litigation hold in 2012. It searched the email accounts of current State employees and located approximately 4,450 emails that one of the former employees had sent or received and 2,322 that the other employee had sent or received. The State estimated that the cost of searching the backup tapes to see if there were additional, responsive documents for these two employees would be approximately $35,000, not including the cost of consultant and attorney's fees.
The Court said F.R.C.P. 26(b)(2)(B) provides the framework to resolve the dispute. It sets forth a two-step inquiry: whether the electronically store information ("ESI") is not reasonably accessible because of undue burden or cost and, if it is not reasonably accessible, whether the movant can still show good cause to require the production, considering the limitations of Rule 26(b)(2)(C).
The Advisory Committee notes identify seven factors the Court should consider when determining whether the movant has shown good cause: (1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed by it no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties' resources.
In addition, Rule 26(b)(2)(C) requires the Court to consider whether: (i) the discovery is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; [and] (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at state in the action, and the importance of the discovery in resolving the issues.
Relying on the analysis in Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003), the Court first concluded that the emails on the backup tapes are not reasonably accessible because the data on them is not stored in any organized manner and it will take at least two weeks and possibly more than four weeks to restore the data on the tapes. In addition, it will cost at least $35,000 to search the tapes for additional email, not including the fees of consultants and attorneys.
The Court then began the seven factor analysis to determine whether there was good cause nonetheless to require the search. It found plaintiffs' discovery request was reasonably specific because it sought only the emails of the two former employees and only a few search terms would be needed to search for the emails. In addition, considering the constitutional and civil rights claims in the suit, the issues at stake are very important.
While plaintiffs are correct that a party's failure to implement a timely litigation hold was relevant to the third factor, mere negligent spoliation by itself does not require the discovery of backup tapes. In addition, expanded searches of the existing email accounts show that over 99 percent of the existing documents are not responsive to plaintiffs' request and defendants have already identified over 6000 emails the former employees had sent or received. Accordingly, the Court concluded that the likelihood of finding additional, responsive documents was slight and that any further information was likely to be unreasonably cumulative or duplicative and not useful or important. Finally, while the State has substantial resources, it has already expended significant resources on ESI discovery. The additional cost of performing the search plaintiffs request is high compared to the small likelihood that additional information will be located.
However, the Court did order that discovery could be reopened for the limited purpose of allowing plaintiffs to depose the two former DCYF employees concerning their email practices and their recollections as to the recipients and contents of non-privileged, relevant emails.
Cassie M., v. Lincoln D. Chafee, C.A. No. 07-241ML, slip op., (D.R.I. Oct. 3, 2013)
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