Holding that Accessible Data Must be Produced at the Cost of the Producing Party, Court Orders Defendant to Conduct Further Email Search

Peskoff v. Faber, 240 F.R.D. 26 (D.D.C. 2007)

A previous e-discovery order in this case dated July 11, 2006, was summarized here. At that time, the parties had disagreed about whether certain additional emails existed. Magistrate Judge John M. Facciola had explained that the requested emails, “if they exist, could be located in one or more of several places: (1) Peskoff’s NextPoint Management email account; (2) the email accounts of other employees, agents, officers and representatives of the NextPoint entities; (3) the hard drive of Peskoff’s computer or any other depository for NextPoint emails, searchable with key words; (4) other places within Peskoff’s computer, such as its ‘slack space,’ searchable with the help of a computer forensic technologies; and (5) backup tapes of Mintz Levin’s servers.” In the previous order, the court had ordered defendant to submit an affidavit describing in detail the nature and scope of its search for responsive electronically stored information.

In this most recent decision, the magistrate judge reviewed the parties’ supplemental submissions and ordered the defendant to perform another and more complete search. He found that, of the five areas described by the court where the requested emails may exist, Faber’s search only involved two, each of which was questionable in its scope. Defendant had produced the entire hard drive of Peskoff’s computer, though no preliminary search of its contents was conducted due to the anticipated cost of such a search. Defendant did not oppose a forensic search of the hard drive, but maintained that plaintiff should cover the expense. Defendant also claimed to have preserved Peskoff’s email account in an archive that was created approximately two months after Peskoff’s departure. Defendant apparently did not search any other email accounts, would not pay for a forensic expert to search the slack space of Peskoff’s computer, and reported that, because backup tapes were overwritten every two weeks, anything from the relevant time period was “long gone.”

The court noted that there were significant and unexplained gaps in what was produced, and that the other types of searches the court had previously suggested were not done. The court continued:

Defendant has not challenged my suggestion of the additional searches that could be performed to ensure a more comprehensive analysis of available electronic data. Yet, defendant did not conduct any of these possible searches. As I pointed out in my previous opinion, written before the new federal rules regarding electronic discovery became effective, the producing party has the obligation to search available electronic systems for the information demanded. The new Federal Rule of Civil Procedure pertaining to electronically stored information makes this explicit. Under the new pertinent rule, the producing party is relieved of producing specifically identified inaccessible data only upon a showing of undue burden or cost. Fed. R. Civ. P. 26(b)(2)(B). Even then, the court may order discovery of the data identified as inaccessible "if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C)," i.e., the rule that balances the costs of the discovery demanded against its benefits. The obvious negative corollary of this rule is that accessible data must be produced at the cost of the producing party; cost-shifting does not even become a possibility unless there is first a showing of inaccessibility. Thus, it cannot be argued that a party should ever be relieved of its obligation to produce accessible data merely because it may take time and effort to find what is necessary.

(Some citations omitted.) Accordingly, the court ordered defendant to conduct a search of all depositories of electronic information in which one may reasonably expect to find all emails to Peskoff, from Peskoff, or in which the word "Peskoff" appears. It further ordered:

Defendant must also file a statement under oath by the person who conducts the search, explaining how the search was conducted, of which electronic depositories, and how it was designed to produce and did in fact produce all of the emails I have just described. I must insist that the person performing the search have the competence and skill to do so comprehensively. An evidentiary hearing will then be held, at which I expect the person who made the attestation to testify and explain how he or she conducted the search, his or her qualifications to conduct the search, and why I should find the search was adequate.