Court Declines to Compel Production of Backup Tapes, Active Emails in Native Format

United States ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225 (S.D. Cal. 2015)

In this case, the court addressed Plaintiffs’ demands that Defendants restore ESI contained on disaster recovery backup tapes for production in native format and produce active emails in native format with metadata.  Upon finding the backup tapes inaccessible, the court undertook the relevant cost-shifting analysis and determined that if Plaintiffs wanted production of the contents of the backup tapes in native format, they would be responsible for the cost.  The court also determined that TIFF images were a reasonable format for production and declined to compel production of active emails in native format or production of metadata.  Accordingly, “Plaintiffs’ requests for the production of Backup Databases, the Active Emails in Native, and the Metadata” were denied without prejudice.

In this lengthy opinion addressing issues of inaccessibility and the format of production, the court addressed Plaintiffs’ request for “all documents” within Defendants’ control, including the contents of Defendants’ disaster recovery backup tapes and active emails, and Plaintiffs’ instruction that Defendants “’produce each original document with all non-identical copies and drafts of that document’” which Plaintiffs asserted required production in native form.

Summarizing broadly, the court first addressed the question of the backup tapes’ inaccessibility and reasoned that “regardless of the cause of their inaccessibility, ‘[b]ackup tapes are considered an inaccessible format, and, thus, shifting the costs of producing data from backup tapes may [always] be considered’” and that “Plaintiffs may feel free to decry Defendants’ contentions that it will take years and millions to restore this ESI to Native form, but these declamations do not disprove Defendants’ assertion that the Backup Data has become inaccessible as part of their typical data retention schematic. And such ESI has been held, by dozens of jurists, to be inaccessible as a purely technological matter.”

Next, the court took up the question of cost-shifting and found that it was appropriate, “based on both the Backup Data’s minimal apparent relevance and Defendants’ adherence to a [sic] common ESI policies.” In support of its conclusion, the court noted that pursuant to its “prior dictates,” Defendants had restored the contents of one tape, thus providing Plaintiffs with access to many potentially relevant emails. Further, regarding Plaintiffs’ insistence on production in native form, the court reasoned that TIFF images were “widely used” and, noting that Plaintiffs had not “discounted” the fact that “Defendants’ storage practices accord with much of corporate America’s approach to storage of non-active data for business purposes” and that “almost every bit of probably relevant ESI will still be provided … in a commonly utilized electronic form,” concluded that :

In spite of Plaintiffs’ belief to the contrary, the Rules do not compel Defendants to produce inaccessible ESI in the form most helpful for Plaintiffs’ case at Defendants’ expense. No, the Rules compel no more than production of ESI in its usual form, with Plaintiffs themselves obligated to pay for the production of inaccessible ESI in an accessible form.

The court also noted Plaintiffs’ failure to successfully rebut Defendants’ assertions regarding the cost of restoration and production, the ambiguity of Plaintiffs’ requests for production as to form and format, and Plaintiffs’ failure to establish their accusations of intentional spoliation (purposefully downgrading the data to an inaccessible format):

To wit, whether their accusations are true or not, they must be supported by some credible evidence, not implications and innuendo, for a defendant remains free to operate their business in its ordinary course in the absence of the reasonable probability of a certain lawsuit and so long as it does not render data inaccessible purely with the intent of stymieing such legal action.

Thus, the court concluded: “Plaintiffs will have much ESI to sift through in the months ahead; if they want more, underZubulake, Rowe, and Rule 26(b), it is fair they pay the price of its production in the Native form they deem so invaluable for the prosecution of their own case.”

Turning to the format of production for Defendants’ active emails, the court stated that the “dispute over the proper format … is governed by a similar cost-shifting analysis” and went on to address the reasonableness of the TIFF format, including the reminder that “Rule 34(b)(2)(ii) allows its use in the absence of a request that does not specify a particular form.”  Regarding Plaintiffs’ requests for production, the court noted their failure to make a specific request for native format, reasoning that “[t]he term ‘original’ [was] certainly not sufficiently precise . . . .”  Ultimately, the court approved of Defendants’ production in TIFF, reasoning that TIFF was “a suitable and proper response to a generic request for ‘original documents,’” that Plaintiffs had not shown the TIFF production had “denuded Defendants ESI” of valuable information, and that pursuant to Rule 34, “[a] party need not produce the same electronically stored information in more than one form.”

Similarly, where Plaintiffs failed to ask for metadata up front and provided no “precise reason why the metadata of any ESI [was] specifically relevant to a claim or a defense”, the Court was “unpersuaded by Plaintiffs’ threadbare reasoning for forcing the production of any metadata belonging to ESI already provided by Defendants.”

The court concluded:

Having waded through this case law, this Court is driven to one conclusion: had the Parties adhered to the spirit of Rule 26(f)(3)(C), nearly every dispute dissected in this lengthy order may have been avoided. Unfortunately, they did not strive to avoid later difficulties or ease their resolution via compromise and accommodation; unfortunately, access to ESI that may have been more broadly available based on compromise and mutual understanding of the costs and complexities involved will now be delimitated by court order rather than these adversaries’ agreement.

Accordingly the court ordered that “Plaintiffs’ requests for the production of the Backup Databases, the Active Emails in Native, and the Metadata are DENIED without prejudice.”

A full copy of the court’s order is available here.