Sanctions Against Defendant and Its Counsel Not Warranted In Contentious Discovery Dispute Involving Production of Email Stored on Backup Tapes

Quinby v. WestLB AG, 2005 WL 3453908 (S.D.N.Y. Dec. 15, 2005)

In this gender discrimination suit, plaintiff sought sanctions against defendant and its counsel for their conduct in connection with the production of email stored on backup tapes. Earlier, the parties had sought the court’s intervention to resolve the scope of electronic discovery. At that time, the court ordered defendant to provide an affidavit addressing the technical issues raised by plaintiff’s discovery requests for emails and other electronic communications. Specifically, the court had directed the parties’ attention to Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003), and further directed that the affidavits address the devices used by defendant to store the data and the seven cost-shifting factors identified in the opinion. The court had further ordered defendant to produce for deposition a witness who could discuss the relevant e-discovery issues, and to restore, as a sample, the backup tape or tapes that contained emails from a particular time frame into a readable, searchable format.

Thereafter, the defendant provided two affidavits, one from defendant’s chief information officer and one from an electronic evidence consultant hired by defendant to assist in restoring and searching the backup tapes. The affidavits provided detailed information about defendant’s backup system, and revealed that there were approximately 3,754 backup tapes that covered the relevant time frame. The affidavits also described the costs and amount of time it would take to restore the backup tapes.

Plaintiff deposed the two affiants, and learned that a “large quantity” of the emails requested were readily accessible and stored on active servers. She argued that the affidavits were incomplete, misleading and contained outright false statements because they improperly focused on backup tapes and did not address the costs of searching other more readily accessible sources. This was the basis for her motion for sanctions against defendants and its counsel.

The court denied plaintiff’s motion, concluding that defendant and its counsel “acted appropriately in focusing on back-up tapes as the most complete source for the requested e-mails. The court found that, “because the back-up tapes contain the most complete source of e-mails – covering all the relevant e-mail accounts and most, if not all, of the time periods for which plaintiff seeks e-mails – and the alternative sources only cover a narrow time frame, a limited number of users and the data on these sources can be incomplete, it was logical for defendants to consider the back-up tapes to be the primary source for the production of e-mails.”