Defendant Offers No Proof to Support Backup Tapes Weren't Reasonably Accessible
Best Buy Stores, L.P. v. Developers Diversified Realty Corp. 2007 WL 333987 (D. Minn. Feb. 1, 2007).
Best Buy was involved in a lease dispute for alleged overcharges for insurance and maintenance. When Best Buy filed a motion seeking to compel the production of responsive archived emails and electronic documents, the defendants offered no proof, by affidavit or otherwise, to support their argument that the information was contained on backup tapes that weren't reasonably accessible. They argued that the cost of processing the tapes would be over $125,000. They also argued that the issue of whether the backup tapes should be restored was not ripe for determination because the parties had not yet sorted through all the issues.
Magistrate Judge Jeanne J. Graham held that the defendants failed to show that the electronic data on the backup tapes was “not reasonably accessible”. Graham cited amended Rule 26(b)(2) and stated, "the Defendants offer no proof, aside from conclusory statements, about the cost to obtain documents from electronic archives. So this concern cannot shield the defendants from discovery here." The defendants were ordered to produce the responsive electronic documents in 28 days.
The defendants then filed an objection with U.S. District Court Judge David S. Doty, seeking an extension of the deadline because it was technologically impossible to comply. The defendants wanted permission to produce data on a rolling basis. To support this assertion they submitted an un-sworn email from Kroll Ontrack saying it would take 102-122 days to restore all the backup tapes, cull and process the data. They also submitted an affidavit from their director of IT stating the backup tapes were only for disaster recovery and that an outside vendor was needed to restore and cull data. Additionally, they submitted letters, exchanged between counsel, one of which included cost estimates from Kroll for the restoration, filtering and processing of the data from the backup tapes. The estimates in that letter doubled the prior cost estimates in the motion paper and now indicated that it would cost between $288,300 and $468,100 to restore the backup tapes, cull and process the data.
Judge Doty was not persuaded by the untimely evidence. He did acknowledge that a modification of the deadline might be warranted if compliance with the deadline was in fact technologically impossible. However, he upheld Judge Graham's order requiring production within 28 days.
The defendants then filed a motion for reconsideration of the order requiring production within 28 days. Judge Graham denied the motion. Judge Graham rejected the defendants' arguments that they did not know of costs or delays earlier and thus could not have presented evidence in support of their objections to electronic discovery until they filed their objection with Judge Doty. Six days later, the defendants filed another motion seeking to extend the time to produce data from backup tapes. This motion has not yet been ruled upon.
