Restoration of Backup Tapes Ordered to Locate Relevant Emails
AAB Joint Venture v. United States, 2007 WL 646157 (Fed. Cl. Feb. 28, 2007)
Contractor brought suit against the United States requesting compensation for the increased costs incurred as a result of the alleged differing site conditions encountered at the work site. Plaintiff moved for order compelling discovery. AAB noted that defendant had identified in its discovery responses numerous individuals who were active in the review of the project design, and who were known to have generated email related to the subject matter of the litigation. However, defendant had produced few, if any, emails from these individuals, and for the six individuals for whom emails were produced, there were gaps in the production. Defendant admitted that, although thousands of electronic documents were produced, it was unable to locate emails of some individuals. Defendant argued that to restore backup tapes that may contain such emails would cost between $85,000 and $150,000 and take 30 days. Defendant further argued that many of the emails produced, contained communications to/from numerous individuals, including those whose own emails were not produced. Therefore, defendant contended that defendant had in fact produced emails for almost all the individuals, and that production of additional email would likely only duplicate those already produced.
The Court ruled that Defendant was under a duty to preserve emails from July 2002 to the present, and that Defendant's decision to transfer the emails to backup tapes does not exempt Defendant from its responsibility to produce relevant emails. To permit a party to reap the business benefits of such technology and simultaneously use that technology as a shield in litigation would lead to incongruous and unfair results. Under the circumstances, the Court found that a reasonable solution is for Defendant to restore a portion of the backup tapes from time periods specified by AAB. After Defendant restores a portion of the backup tapes and identifies responsive documents contained therein, AAB will then have the opportunity to review responsive material to determine if it contains relevant evidence and if additional restoration of backup tapes is warranted.
The Court ruled that restoration of one-fourth of the total backup tapes should be adequate to determine whether the tapes are likely to possess relevant evidence. Defendant shall bear the costs of restoration of the initial sample of backup tapes and screening the sample to identify responsive documents. The parties will then have an opportunity to argue before the Court whether or not additional restoration of backup tapes is likely to lead to production of relevant evidence and consequently who should bear the cost for additional restoration.
