Court Resolves Dispute Regarding Scope of Discovery, Addresses Search Terms, Custodians, and Backup Tapes

Helmert v. Butterball, LLC, 2010 WL 2179180 (E.D. Ark. May 27, 2010)

In this collective action brought under the Fair Labor Standards Act, plaintiffs and defendant reached significant impasse regarding the appropriate scope of discovery, including disagreement regarding search terms, the number and identity of custodians, the sources of data to be searched, and who should bear the costs.  Resolving each issue in turn, the court’s discussion focused in large part upon weighing the burden of plaintiffs’ requests against the potential to discover relevant information, including a discussion of the discoverability of backup tapes.  The court also declined to shift the costs of production.

Following defendant’s initial production of 887 documents, including 87 emails, plaintiffs sought to compel defendant to conduct additional searches.  Defendant objected to the number of proposed search terms and custodians and, despite several attempts, no agreement could be reached.  Eventually, plaintiffs sought to compel defendant to search for additional information “from all possible sources of ESI belonging to 43 custodians” using 70 separate terms.  Defendant consented to searching the active and archived email folders of 33 custodians using 12 previously proposed terms and argued any additional searching would be unreasonably duplicative, would impose significant burden, and would require searching locations deemed “not reasonably accessible.”

Addressing each issue in turn, the court first took up the question of appropriate search terms and analyzed each of plaintiffs’ four categories of terms individually.  The court’s analysis included consideration of Fed. R. Civ. P. 26(b)(2)(B) related to defendant’s assertion of undue burden and noted that defendant had not provided evidence of the estimated costs of the allegedly burdensome searches.  As to at least one category, the court relied upon the results of a sample search to assess the likelihood of discovering responsive information.  Ultimately, three of the four categories were approved.

As to additional proposed custodians, the court approved certain of plaintiffs’ proposals for expanding the number of custodians, including ordering the search of certain “non-Butterball ESI sources”, e.g., the personal and professional email accounts of upper management who were not on defendant’s email system during the relevant time period.  The court declined, however, to order defendant to conduct searches of custodial sources unlikely to contain responsive material and sources deemed not reasonably accessible, namely backup tapes.

Defendant objected to searching backup tapes, arguing that they were not reasonably accessible.  Specifically, defendant asserted that to conduct such a search it would need to recover the emails stored on the tapes, build a server, install new software, and restore “an entire post office”.  The hardware to restore the post office alone was estimated to cost $10,000.  All of this was necessary before any searching could be conducted.  Accepting defendant’s arguments, the court found the backup tapes were not reasonably accessible.  Pursuant to the rule, however, plaintiffs asserted the search should nonetheless be compelled because they had good cause to obtain the information on the backup tapes.  Analyzing each of the seven factors identified for consideration by the advisory committee notes to rule 26(b)(2), the court declined to compel the search.  Specifically, the court found it “most significant that the plaintiffs have no idea what, if any, discoverable information may be obtained by rebuilding a server post office and searching the emails of the above-listed persons that are stored on the backup tapes” and concluded that “the slim likelihood that new and relevant information may be discovered does not outweigh the substantial burden and expense required to retrieve the information from the backup tapes.”

Because the court did not compel discovery of any ESI that was not readily accessible, the court found cost shifting was inappropriate.