Discovery Dispute Regarding Production of Email from Backup Tapes Resolved
Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 2007 WL 1585452 (D.D.C. June 1, 2007)
Disabled individuals and the Equal Rights Center filed a lawsuit based on the Americans with Disabilities Act (ADA) against Washington Metro Area Transit Authority (WMATA). The case was referred to Magistrate Judge John M. Facciola to resolve several discovery disputes, one of which was regarding the production of email from backup tapes.
Although the complaint in this case was filed on March 25, 2004, WMATA did nothing to stop its email system from obliterating all emails after sixty days until, at the earliest, June of 2006. WMATA presented testimony that its email system was programmed with an automatic deletion feature that deleted any email after it had been in existence for sixty days. Although, a user could override the feature by archiving the email, most of the WMATA employees did not do this. Therefore, plaintiffs argued that WMATA had failed to properly instruct employees to retain potentially responsive electronic documents and therefore should pay to create the backup tapes.
WMATA did not deny that there should have been a litigation hold on the emails. The court agreed and called the lack of preservation “indefensible.” The court determined that Rule 37 of the Federal Rules of Civil Procedure did not apply since plaintiffs were not seeking sanctions but seemed to imply that had the plaintiffs asked, Rule 37 would not have shielded WMATA. This is because, the rule requires good faith in the routine operation of an information system, which “may involve a party’s intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation.”
Plaintiffs moved the Court to order WMATA to search the backup tapes for discoverable information which WMATA deleted. WMATA objected on the grounds of burden and expense because backup tapes were “not reasonably accessible” and that there was little reason to believe they contained relevant information. The court likened the argument to Leo Kosten’s definition of chutzpah: "that quality enshrined in a man who, having killed his mother and his father, throws himself on the mercy of the court because he is an orphan."
A decision on whether to require a responding party to search for and produce information that is not reasonably accessible depends not only on the burdens and costs of doing so, but also on whether those burdens and costs can be justified in the circumstances of the case. The court found that application of these factors made for an “overwhelming” case for production of the backup tapes and granted the plaintiffs’ motion.
