Court Denies Motion for Adverse Inference and Spoliation Instructions; Motion for Restoration from Backup Tapes Denied

Concord Boat Corp. v. Brunswick Corp., 1997 WL 33352759 (E.D. Ark. Aug. 29, 1997)

For approximately a year, the parties attempted to resolve issues concerning defendant’s electronic information. The court instituted a “spot-checking” procedure to help determine the adequacy of all parties’ production. Based on results of that procedure, plaintiff moved for an adverse inference/spoliation instruction based on defendant’s alleged destruction of email.

The court determined that, although some responsive information was lost through employees’ practice of deleting email not needed for a business purpose, “it would be speculative to say that the lost information would have a significant impact on the body of proof in this case.” 1997 WL 33352759, at *3.

The court further denied plaintiff’s motion to compel the restoration and production of email from backup tapes. The defendant described the procedure to restore the backup tapes: defendant would have to duplicate its computing environment as it existed at the time the backup tapes were made on a separate computer system; the tapes would then be restored to this separate system and a “one-for-one comparison” would need to be made between messages contained on the restored tape and those on the current system. Although the defendant had not yet attempted to estimate the cost of the discovery, it was “obvious” to the court that recreating the computing environment at the time the backup tape was created would involve significant cost. Id. at *9. Further, the court found the potential gains to be “questionable,” since the backup information available predated the current system only by 14 days (due to defendant’s two-week backup tape recycling schedule). “Similarly, even if earlier back up tapes containing ‘snapshots’ of the system were in existence, the potential limited gains from a search of such tapes would be outweighed by the substantial burden and expense of conducting such a search.” Id. Accordingly, the court ruled that the defendant would not be required to restore and search any available backup tapes which might contain deleted email.