This was a motion by the Defendant to compel the Commonwealth to produce documents. The action involved allegations that Universal had discriminated against a number of employees on the basis of race and gender. The employees made allegations that Universal had submitted false claims under the Virginia Medicaid Program. These allegations were submitted to the Department of Behavioural Health and Developmental Services (DBHDS). The Commonwealth argued that to produce the documents would be unduly burdensome as to do so an exchange server no longer in use would need to be recreated to enable the reading of all backed-up files. The Court stated that for a party to avoid the production of responsive electronically stored information based on undue burden it must show that the information is not reasonably accessible because of undue burden or cost. In this case, the facts showed that the Commonwealth knew as early as April 4, 2008 that it intended to intervene in the action and that the claims would involved the DBHDS. However, the Commonwealth failed to put a litigation hold in place until April 1, 2010. The Court held that a portion of the records being sought were less accessible due to the negligent failure of the Commonwealth to take steps to adequately preserve relevant information. Further, there was evidence that commercial vendors could read and produce the information in question in a less expensive method than that proposed by the Commonwealth. The Court ordered that the Commonwealth should not be excused from production of the sought after information.
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