Reprinted with permission from FindLaw.com
Since the enactment of the electronic discovery amendments to the Federal Rules of Civil Procedure in late-2006, parties have been paranoid that the scope of their production obligations would be gargantuan, and that they would be compelled to search for and provide a wide array of electronic information, at a tremendous financial cost. The fear has been that judges truly would not understand the phenomenal burden associated with electronic discovery, and would order production, notwithstanding the effort and expense. Fortunately, a recent case demonstrates that at least some judges "get it," balancing the probative value of the information sought against the hardship involved in providing the information.
In Petcou v. C.H. Robinson Worldwide, Inc., the plaintiffs brought an employment discrimination action based on alleged offensive gender-related comments in the workplace and pornographic images on the computer screens of co-workers. Earlier in the case, the federal magistrate in Georgia had ordered the defendant company to produce computer-generated attempts by employees to access adult Web sites at two of its Atlanta branches during the operative timeframe. The magistrate at that time denied the plaintiffs' request for emails containing adult content, but in so doing, permitted the plaintiffs to file a later motion for reconsideration subsequent to obtaining evidence relating to the associated burden of the defendant. The motion to reconsideration thereafter was filed and was at the heart of the magistrate's ultimate ruling on electronic discovery issues in the case.
In their motion for reconsideration, the plaintiffs demanded emails "of a sexual or gender derogatory nature sent from 1998 through 2006." This is the type of request that seems simple on its face, and that can cause great fear on the part of a receiving defendant who worries that a judge in knee-jerk fashion may grant the request. As shown in this case, compliance with such a request would be quite onerous and costly.
The emails of the defendant's employees in this case are stored on the defendant's Exchange servers in the first instance. Those emails that have not been deleted by the employees may still be on the servers and might be retrieved without much expense. However, the evidence presented demonstrated that it is very unlikely that the emails from the operative time period are still on the servers.
When an employee of the defendant company deletes an email, that email can be retrieved without difficulty for up to eight days thereafter. And when an employee ceases employment, his or her emails are automatically deleted from the servers after ten days. Even though deleted emails can be harvested from back-up tapes, subsequent to these eight and ten periods, the associated costs go up exponentially.
To perform a search for emails with sexual content, a third-party vendor would need to scrutinize the emails of all of the defendant's 5,300 employees because the defendant does not have servers assigned to separate branches. Each back-up tape houses three to five days worth of emails. And the cost of harvesting emails from each back-up tape ranges from $$325 to $365. Accordingly, the cost of retrieving just two years of emails for one employee is $79,300 in this case!
Fortunately for the defendant company, the magistrate recognized that Federal Rule of Civil Procedure 26(b)(2)(C) allows the court to consider whether "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." At rock bottom, the magistrate found that the defendant had met its burden of showing that the deleted emails were "not reasonably accessible because of undue burden and cost."
The magistrate came to this conclusion first by finding that the plaintiffs' discovery requests were "extremely broad," as they would compel a search of all emails of all employees for a six-year timeframe. In addition, the defendant would be required to examine the content of each email to ascertain whether it contained potentially gender derogatory information. On top of that, the magistrate concluded that, given testimony already provided relating to pornography in the workplace, the demanded emails "would provide little, if any, relevant information that Plaintiffs themselves have not already provided."
Rather than completely deny the plaintiffs' renewed motion, the magistrate did require the production of two categories of emails that the magistrate believed would not cause undue burden. The first category comprised undeleted emails sent prior to 2007 by current employees who have been specifically named by the plaintiffs as having possessed sexually explicit material on his computer. The second category relates to any emails with sexual content sent or received by any of the plaintiffs' co-workers that the defendant knows about and has retained. The magistrate was clear that the defendant did not have to search its back-up tapes as part of this effort.
Here, the magistrate closely analyzed the potential value of the information sought against the burden associated with providing the information, and applied a common sense approach.
The magistrate also grappled with the plaintiffs' sanctions request based on the defendant's alleged spoliation of evidence. The plaintiffs argued that the defendant improperly allowed emails to be deleted.
The evidence established that the defendant deleted its employees' emails by following its usual retention and destruction schedule. All well and good, except that the defendant continued to do that even after an EEOC complaint alleging company-wide sexual harassment had been filed in 2001.
The magistrate decided not to sanction the defendant because the plaintiffs in the EEOC case did not request company-wide preservation of emails and because they did not tell the defendant the names of the individuals for whom emails should be preserved. Here, the magistrate perhaps was a bit generous with the defendant. Once a company is on notice of potential or actual litigation, the prudent approach is to preserve evidence relating to issues at stake in that litigation, notwithstanding retention and destruction policies already in place.
At the end of the day, nevertheless, the Petcou case represents a case in which a judge tried hard to understand the true implications of potentially ordering the production of electronic discovery and used common sense so as not to impose an unfair and unreasonable burden on the responding party. While there may be a collective sigh of relief for responding parties in learning of this decision, it must be remembered that this is just one case handled by one judge, and other judges may be much more strict in imposing electronic discovery requirements.
Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual-property disputes. This column is prepared and published for informational purposes only, and it should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
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Duane Morris LLP, one of the 100 largest law firms in the world, is a full-service firm of more than 650 lawyers. In addition to legal services, Duane Morris has independent affiliates employing approximately 100 professionals engaged in other disciplines. With offices in major markets in the United States and internationally, Duane Morris represents clients across the U.S. and around the world.
This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.
Duane Morris LLP, one of the 100 largest law firms in the world, is a full-service firm of more than 650 lawyers. In addition to legal services, Duane Morris has independent affiliates employing approximately 100 professionals engaged in other disciplines. With offices in major markets in the United States and internationally, Duane Morris represents clients across the U.S. and around the world.
