The controversy involved ESI stored on a Plasmon archiving system which producer argued was so cumbersome that the data contained within it was not reasonably accessible because of undue burden or cost under Rule 26(b)(2)(B). The system was described as similar to an optical jukebox, containing 500 double-sided DVDs accessed by a robotic arm. The limitations of the system caused producer to replace the Plasmon system with a new system, but data on the Plasmon system had not been migrated.
Producer’s expert testified that production of the requested emails could potentially involve the access of all of the 500 DVDs in the system. Only one custodian’s email could be recovered at a time, preventing access by producer’s employees of archived emails while the searches were in progress. Attempts to access more than one user’s emails at a time caused the system to freeze, requiring a cumbersome reboot. As only 8 emails per hour could be restored, the total restoration of 25,000 emails (assuming 11 hours per day) would take 284 days. Restoration for 5 custodians could therefore take up to 5 years. Outside vendors could not perform the restoration as many of the DVDs could be only be read by proprietary equipment owned by producer, and producer would be without access to the information during the restoration process. The expert estimated the cost of retrieval at about $834,000, significantly higher than producer’s original $88,000 estimate.
Rodriguez-Torres v. Governmental Development Bank of Puerto Rico, 2010 U.S. Dist. LEXIS 3958 (D.P.R. Jan. 20, 2010)
In an employment discrimination case, plaintiff requestors sought emails and calendar entries in native format as follows:
For each year 2007, 2008, 2009, produce in native electronic format with its original metadata all e-mail communications and calendar entries describing, relating or referring to plaintiff Vicky Rodriguez, both inbound and outbound from co-defendant GDB’s messaging system servers. Particular attention to the following definition of extract key-words needs to be exercised: a) identification of Rodriguez by different variations of her name; b) designation of pejorative and derogatory terms typically used to demean persons according to their age and gender (including but not limited to phrases such as: vieja, nena, arrugas, anos, edad, etc.); c) designation of phrases which could be referring to the current and past litigations, and which could suggest retaliatory animus or activities (including but not limited to phrases such as: demanda, caso, testigos, demandada, plaintiff, etc.); d) designation of record custodians to include all co-defendants, and other unnamed GDB employees known to tease, insult and taunt Rodriguez based on her physical appearance and age….
Id. at *6-*7. Defendant producer GDB objected on the basis of overbreadth, and argued “that the requests by Plaintiffs are likely to produced hundreds if not thousands of documents which will include irrelevant, confidential and potentially privileged information.” Id. at *7. In a report commissioned at the court’s request, a consultant estimated the cost of production at $35,000.
Secure Energy, Inc. v. Coal Synthetics, 2010 U.S. Dist. LEXIS 13532 (E.D. Mo. Feb. 17, 2010)
Plaintiff initially served their discovery requests on Defendnat on December 31, 2008. Plaintiff asked for “[a]ll documents relating to engineering plans and drawings developed as a result of the equipment bidding process for the Coal Synthetics Project(s).” On February 2, 2010, Plaintiff filed their motion for leave to file a motion to compel asking for production of the plans and drawings in native format. The discovery deadline was November 20, 2009 and all motions to compel were due by December 1, 2009. Requestor sought the drawings in native format because the metadata would show who created the drawings and whether they were created from another file, which would support requestor’s claim that the drawings were misappropriated.
OCE North America v. Brazeau, 2010 U.S. Dist. LEXIS 25523 (N.D. Ill. Mar. 18, 2010)
Plaintiff sought to close an evidentiary gap in its trade secret case against defendant by filing a motion for sanctions and an adverse inference based on defendant’s admitted failure to save his instant messages. The court found that defendant had used his employer’s instant messaging system and did not save the messages until well after suit was filed. “Thus, the evidence shows that defendant had, and breached, a duty to preserve those messages.” Id. at *18.
However, the court found that defendant did not act in bad faith. First, defendant testified and claimed that there was no way to save his instant messages. Next he testified that the messages were in fact saved on company servers, just as emails were saved and once he learned that he could change default settings to save the messages, he did so. The Court ruled that because Plaintiff had not offered any evidence that defendant had knowledge that the Instant Messages were not being saved, plaintiff had failed to “prove that defendant’s actions were intentional, reckless or unreasonable.” Id.
In addition, an adverse inference was inappropriate because the existing 55,000 pages of documents produced by producer indicated that plaintiff had suffered little harm. The court stated that the evidence provided “scant evidence of misappropriation.” Therefore, “[g]iven the circumstances, it would be unreasonable…to infer that the missing messages ‘contained the ‘smoking gun’ . . . evidence’ of misappropriation.” Id. at *19.
Cartel Asset Management v. Ocwen Financial Corp., 2010 U.S. Dist. LEXIS 17857 (D. Colo. Feb. 8, 2010)
The dispute involved a misapropriation of trade secrets, breach of contract and fraud claims and at the conclusion of the trial, the jury found for Cartel and against Defendant Ocwen Federal Bank FSB awarding compensatory damages of $ 4,900,000 and punitive damages of $ 3,900,000. The jury also found in favor of Cartel and against Defendant Ocwen Technology Xchange on the claims of breach of contract and fraud, and awarded nominal damages of $ 1 and actual and punitive damages of $ 520,000, respectively.
The District Court Judge, Judge Figa ordered a new trial on the issue of damages because “There was no proper nexus between the amounts awarded and the credible evidence in the case as to damages consistent with the three claims at issue.”
Discovery was reopened as to the issue of damages and Defendants objected to several of Plaintiffs’ interrogatories and requests for production on the grounds that the ESI sought was not reasonably accessible because of undue burden or cost. The court noted that Defendants bore the burden of persuasion, which “cannot be sustained with bald generalizations.” Producers must “present details sufficient to allow the requesting party to evaluate the costs and benefits of searching and producing the identified sources.” Id. at *44.
Defendant’s SVP of Sales and Marketing was responsible for gathering responsive information and claimed that “the process of producing responsive information ‘would affect our profitability and ability to serve our clients.’” Id. at *46. The court analogized this statement as “the e-discovery equivalent of an unsubstantiated claim that the ‘sky is falling.’” Id. The declarant’s statement lacked “specific information indicating how the Ocwen Defendants store electronic information, the number of back-up or archival systems that would have to be searched in the course of responding to Plaintiff’s Second Requests, or Defendants’ capability to retrieve information stored in those back-up or archival systems.” Id. at *45.