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Sent to you by pakurilecz via Google Reader: Court Denies Motion to
Compel Production of Email from Backup Tapes via Electronic Discovery
Law by [log in to unmask] (K&L Gates) on 7/31/08
Young v. Pleasant Valley Sch. Dist., 2008 WL 2857912 (M.D. Pa. July 21,
2008)

In this case, plaintiffs had requested that they be allowed to search
the defendants' backup tapes in an attempt to discover whether other
complaints were made to the district about the teacher who was at the
center of the case. After examining the relevant case law, the court
concluded that it lacked sufficient information on the process of
recovering deleted emails, the time required to do so, and the
potential costs of that recovery. As a result, the court ordered
defendants to supply the information and delayed a decision on
plaintiffs' motion until it had the information.

Defendants complied with the court’s request, and provided the
following information:

(1) the district already possessed the equipment necessary to gain
access to materials preserved on the backup tapes;
(2) the cost of the search would be a minimum of $10,000;
(3) a week would be needed to rebuild and restore the e-mail program,
and additional time would be needed to access the emails;
(4) there were easily millions of emails stored on the server, and a
precise number could not be reported until the server was rebuilt; and
(5) once the emails were restored, they could be searched by date,
recipient, sender, subject or keywords.

The court concluded that the burden and expense of rebuilding the
district's email system in order to provide the requested discovery,
along with the additional and less expensive means available for
plaintiffs to get this material, made the plaintiffs' discovery request
impractical. Accordingly, the court denied plaintiffs' motion.

The court rejected plaintiffs’ offer to have their own expert search
the tapes:

The court finds this request unduly burdensome to the school district,
impractical and contrary to the spirit of the Federal Rules of Civil
Procedure, and will deny it. See, e.g., Committee Note to 2006
amendment to Federal Rule of Civil Procedure 34(a) (finding that the
rules related to electronic discovery were “not meant to create a
routine right of direct access to a party's electronic information
system, although such access may be justified in some circumstances.”)
Given that an unrestricted search of the back-up tapes would likely
implicate a wide variety of privacy concerns for the school district,
children in the district and the parents of those students, the school
district would undoubtedly need to supervise closely the discovery.
This close supervision would cause great time and expense to the
district, essentially creating added and unnecessary costs for any
search. If the court were to order the production of material from the
backup tapes, the most efficient and least costly procedure would be
one that relies on the defendants to produce the requested material.
The court would rely on the defendants to produce all of the
discoverable material contained on those tapes.


The court went on to find that the factors laid out in Rule 26(b) (2),
and in particular the third factor, counseled against requiring
production of material from the back-up tapes. The court explained:

First, we find that the burden and expense of the proposed discovery
outweighs its likely benefit. The court accepts the district's
representation of the cost of reproducing the deleted e-mails by
rebuilding a discontinued server. Though the court is skeptical about
the time and expense required to search the e-mail system once it is
restored, the court recognizes that $5,000 represents a significant
burden to a public school system. Searching the millions of e-mails,
even with an efficient key-word system, would undoubtedly place a
burden on the district staff and defense counsel charged with weeding
out clearly irrelevant or privileged documents. Second, the needs of
the case also limit the usefulness of the data sought. While complaints
about Mr. Smith contained in e-mails would undoubtedly be relevant to
the question of whether the district was aware of problems with the
teacher, parents' complaints about Mr. Smith could be accessed in a
more cost-efficient and less burdensome way. E-mails from other parents
would be helpful to this claim, but perhaps simply cumulative. Third,
the resources of the parties involved and the amount in controversy in
this case are relatively small. This case does not involve a
billionaire multi-national corporation that could produce the material
in question using a minuscule fraction of its budget, and the
plaintiff's do not have a large financial interest in the case which
could only be realized with information on the tapes. Thus, the third
of the factors stated in Rule 26(b)(2) counsels against allowing the
discovery.


Further, the first factor stated in the rule also makes discovery
unnecessary here. The material sought is most likely obtainable from
another source that is more convenient, less burdensome or less
expensive. Thus, the request is “ ‘overly broad in scope, duplicative
of prior requests and unduly burdensome.’” Cummings v. General Motors
Corp., 365 F.3d 944, 954 (10th Cir. 2004). In this matter, the question
is not whether the district received e-mails about a teacher, but
whether it received complaints about that teacher. Under the
circumstances here presented plaintiffs seek perhaps the most expensive
and burdensome method for discovering whether such complaints existed.
Plaintiffs have other options for obtaining this information. They
could, for instance, take the relatively cost-efficient step of sending
written questions to parents who had students in Mr. Smith's classes,
asking if they ever made complaints to the school about him in any
form. Those parents may have preserved copies of e-mails to the school,
or they may be able to testify that they sent such documents to the
district. Indeed, even in today's wired and connected society, e-mails
are not the only way that parents complain about teachers: depositions
of school officials could provide information about telephone calls,
conferences, or conversations in hallways, offices, or supermarkets
that would provide the type of material sought with this request.


A copy of the full decision is available here.



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