Court Orders Re-Production of ESI at Producing Party’s Expense Where Vendor’s Processing Error Caused Thousands of Emails to be Separated from Their Attachments
PSEG Power New York, Inc. v. Alberici Constructors, Inc., 2007 WL 2687670 (N.D.N.Y. Sept. 7, 2007)
Magistrate Judge Randolph F. Treece began his memorandum decision and order in this construction litigation with these introductory remarks:
With the rapid and sweeping advent of electronic discovery, the litigation landscape has been radically altered in terms of scope, mechanism, cost, and perplexity. This landscape may be littered with more casualties than successes and the discovery imbroglio in this case is a prime example of this observation. For nearly six months, the parties and the Court have been grappling with an electronic discovery monstrosity with the hope that it could be corralled and definitively resolved, thereby obviating the need for motion practice. Alas, attempts to resolve the issue in lieu of briefs fell woefully beyond the parties’ grasp and, as the last straw, they have set the matter at our feet for appropriate resolution.
The parties’ electronic discovery dispute arose when numerous emails being produced by PSEG were “divorced” from their attachments due to a technical glitch in the software used by PSEG’s e-discovery vendor. (None of the raw data had been lost, and all 750 gigabytes of unfiltered data remained intact and in its original format.) Upon discovering the problem, the parties attempted to determine whether a reasonable solution was feasible. However, it became apparent that remarrying the emails to their attachments would be “formidable and costly.” A number of potential solutions were attempted, none of which proved successful.