eDiscovery Daily Blog

If Plaintiff Wants Discovery on Defendant’s Backup Tapes, Court Rules He Must Pay for Them: eDiscovery Case Law

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

In Elkharwily v. Franciscan Health Sys., No. 3:15-cv-05579-RJB (W.D. Wash. July 29, 2016), Washington District Judge Robert J. Bryan, finding that the defendant had met its burden to show that retrieving electronically stored information on backup tapes “would result in an undue burden and cost to Defendant”, that the plaintiff “has not met his burden to show good cause” to overcome the defendant’s undue burden and cost argument, and that “the archived emails are ‘discoverable’ under Fed. R. Civ. P. 26(b)(1)”, ordered the defendant to “facilitate access to the discovery”, but “only at Plaintiff’s expense, payable in advance”.

Case Background

In this case, the plaintiff sought production of all emails and text messages concerning the plaintiff between employees, agents or attorneys of the defendant as well as other emails related to Group Health, the National Practitioners Data Bank [NPDB] or any former employer of the plaintiff.

The defendant objected to the request on the grounds that it was overbroad and burdensome, indicating that it did not have an email archiving system, but instead archived emails on a monthly basis on physical backup tapes, as part of a disaster relief program. The defendant indicated that in order to retrieve all responsive discovery, it would need to retrieve, restore, and review each backup tape, which at 14 hours per tape would require 1,400 hours in labor and $157,500 in costs.  The defendant also indicated that it had already searched the live email accounts of several custodians, was producing non-privileged responsive documents that it had found in those searches and referred to the emails previously produced with the defendant’s initial disclosures.

In response, the plaintiff filed a Motion to Compel Discovery Responses, indicating in a declaration that, as soon as July 2013, the plaintiff notified the defendant’s attorney of his intent to file a lawsuit (the defendant’s attorney, in his own declaration, stated he had no recollection of those conversations).

Judge’s Ruling

While acknowledging that the emails sought by the plaintiff were discoverable, Judge Bryan stated that “Defendant has met its burden to show that retrieving the electronically stored information would result in an undue burden and cost to Defendant.”  Judge Bryan also found that the plaintiff “has not met his burden” to show good cause, stating: “Tellingly, Plaintiff does not name individuals that Plaintiff believes exchanged emails about Plaintiff, nor does Plaintiff describe suspected content of the emails. Plaintiff does not even represent with any surety that responsive emails exist. Because Plaintiff has not met his burden for good cause, compelling production of the discovery at expense to Defendant is not warranted.”

However, because the archived emails were “discoverable” under Fed. R. Civ. P. 26(b)(1), Judge Bryan ruled that “upon a request by Plaintiff, Defendant should facilitate access to the discovery, but should do so only at Plaintiff’s expense, payable in advance. Plaintiff should be responsible for all costs, such as retrieving and restoring the backup tapes to an accessible format, except for costs relating to Defendant’s review of the information for privileged material (which is like any other discovery request, e.g., the live emails)…Defendant should not otherwise be compelled to produce the archived emails, and to that extent Plaintiff’s motion should be denied.”

So, what do you think?  Should the defendant have been required to bear the cost of restoring the backup tapes for discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

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