A federal court in Washington recently denied a motion to compel the production of archived emails stored on backup tapes, rejecting the plaintiffs argument that the defendants culpability in failing to preserve the emails in a more accessible format outweighed the burden and cost to the defendant of restoration.
In Elkharwily v. Franciscan Health System (W.D. Wash.), the defendant did not maintain an email archive on its servers; rather, it saved its employees emails to physical backup tapes on a monthly basis. Without restoring the backup tapes, the only emails accessible to the defendant were those that remained in the relevant custodians live email accounts in other words, the emails that the users had not deleted from their inboxes.
Under Federal Rule of Civil Procedure 26(b)(2)(B), a party need not provide discovery … [when] not reasonably accessible because of undue burden or cost. The producing party has the burden of showing undue burden and cost, but, upon making that showing, Rule 26(b)(2)(B) places the burden on the requesting party to show good cause exists to produce the ESI in spite of the burden and cost.
The defendant in Elkharwily did not dispute that its backup tapes would contain at least some emails that were discoverable under Rule 26(b)(1), but it argued that obtaining those emails would impose undue burden and cost. Specifically, the defendant estimated that retrieving, restoring, and reviewing the emails archived on the backup tapes would cost $157,500.
The plaintiff did not contest the defendants cost estimate or otherwise dispute the defendants burden and cost arguments. Rather, the plaintiff argued that the defendant was at fault for the high cost of restoring the backup tapes, because the defendant should have preserved them in a more readily accessible format, starting from the first time that the plaintiff contended he had put the defendant on notice of the possibility of litigation.
The court found the plaintiffs blame-shifting to be unpersuasive, particularly in light of a dispute over when the defendant was on notice of the potential for litigation, for which the court found the defendants explanation to be more credible. What’s more, the plaintiff could not say with certainty what the emails on the backup tapes would show, or that any would even be responsive to the plaintiffs discovery requests. Accordingly, the court found that the plaintiff did not show good cause under Rule 26(b)(2)(B), and the court denied the motion to compel production of emails on the backup tapes. The court did allow the plaintiff to continue to pursue discovery of those emails, but only at his own expense.
This case provides important lessons for parties requesting ESI and for parties producing it. Parties requesting ESI should carefully examine cost estimates when faced with cost and burden objections, because the burden shifting that occurs following a showing of undue burden and cost makes a motion to compel much less likely to succeed. For parties producing ESI, this case provides yet another reminder that objections to discovery that would require restoration of physical backup tapes are often successful when they are supported by objective and credible cost estimates.