Champion Foodservice LLC, Plaintiff, v. Vista Food Exchange, Inc., et al., Defendants CASE NO. 1:13-cv-1195 United States District Court, N.D. Ohio, Eastern Division Signed March 29, 2016 Counsel Christine M. Kuntz, Davis & Young, Cleveland, OH, Paul D. Eklund, Collins, Roche, Utley & Garner, Westlake, OH, R. Guy Taft, Stephen E. Schilling, Emily T. Supinger, Strauss & Troy, Cincinnati, OH, for Plaintiff. Adam J. Hensel, Hahn, Loeser & Parks, Columbus, OH, John F. Marsh, Hahn, Loeser & Parks, Akron, OH, Jonathan C. Scott, Dallas, TX, Martin D. Koop, Tiffin, OH, for Defendants. Lioi, Sara, United States District Judge ORDER *1 This matter is before the Court on the motion of defendants Vista Food Exchange and Joshua Newman (collectively, “defendants” or “Vista”) for reconsideration of the Court's Order of March 20, 2015 (Doc. No. 396 [“Order”] ) with respect to Vista's responsibility for bearing the cost for discovery of plaintiff Champion Foodservice LLC's (“Champion” or “plaintiff”) electronically stored information (“ESI”). (Doc. No. 483 [“Motion”].) Champion has opposed the motion (Doc. No. 495 [“Opp'n”] ), and defendants have replied (Doc. No. 504 [“Reply”] ). For the reasons that follow, Vista's motion is denied. A. Background The issue of discovery of Champion's ESI was originally before the Court on Champion's objection to the Special Master's order permitting Vista to conduct an on-site inspection of Champion's ESI in six categories. The Court overruled Champion's objection, established a schedule for the on-site inspection, and ordered Vista to bear the cost of the ESI discovery. (Order at 18887-89.[1]) Thereafter, a dispute erupted between the parties regarding the ESI discovery ordered by the Court (Doc. No. 411), which the Court referred to Magistrate Judge Limbert for resolution (Doc. No. 412). Magistrate Judge Limbert conducted a hearing on the dispute and promptly issued an order resolving the matter and ordering the ESI discovery to proceed. (Doc. No. 424 [“MJ Order”].) B. Discussion 1. Vista's motion Vista seeks reconsideration of the Order to the extent that the Court shifted the cost of the ESI discovery to Vista, arguing that Champion should bear those costs. Vista's motion focuses on category 3 of the six categories of ESI discovery ordered by the Court. (Motion at 20164; MJ Order at 19388.) Category 3 relates to ESI discovery of backup tapes in existence as of February 26, 2013 (the date defendant Matthew Gibson resigned from Champion), and on March 7, 2013 (the date Champion filed this lawsuit). (MJ Order at 19388-89.) Prior to the Court's Order, Champion had not indicated that it did not have backup tapes responsive to category 3, but resisted the discovery of those tapes for various reasons. After the Court ordered ESI discovery, Champion represented for the first time that it could not produce backup tapes for category 3. (Id.) Vista was suspicious of this representation, but the magistrate judge concluded that the forensic inspecton ordered by the Court would reveal if the backup tapes for that period existed, or were lost or deleted. (Id.) The ESI discovery is complete, and no ESI discovery for category 3 was produced. The Court's reason for shifting the cost of this discovery to Vista in the first instance was because the ESI discovery sought—backup tapes and deleted material—was not reasonably accessible. (Order at 18888-89.) Vista contends that a “material change in circumstances” supports its motion because, at the time the Court shifted the cost to Vista, neither the Court nor Vista knew that Champion would later assert that no backup tapes existed for category 3. Because the category 3 discovery apparently does not exist, and “[t]he tapes that Champion offered are of no use to Vista,” Vista reasons that it should not have to bear the cost of the ESI discovery. *2 Plaintiff's opposition to the Vista's motion contains wide-ranging arguments that revisit issues that have already been considered by the Court and relate to the merits of this litigation.[2] With respect to category 3 of the ESI discovery, Champion explains that as of February 7, 2013—before Matthew Gibson resigned—Champion ceased creating backup tapes of its server and instead relied upon its mirrored hard drive system to back up and preserve its information. (Opp'n at 20429.) Champion's opposition is silent on why, before the Court ordered ESI discovery, it did not indicate that ESI discovery responsive to category 3 did not exist. 2. Analysis “District courts have authority under common law and Rule 54(b) to reconsider interlocutory orders ... This authority allows district courts to afford such relief from [interlocutory] orders as justice requires.” Rodriguez v. Tennessee Laborers Health & Welfare Fund, 89 Fed.Appx. 949, 959 (6th Cir. 2004) (internal quotation marks and citation omitted) (citations omitted); see also Kinzel v. Bank of Am., No. 3:10cv2169, 2016 WL 951531, at *9 (N.D. Ohio Mar. 14, 2016) (order granting partial summary judgment is interlocutory) (citing Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)). “While motions for reconsideration of interlocutory rulings are not subject to the strict deadlines set forth in Rule 59, Sanders v. DaimlerChysler Corp., No. 3:05-cv-7056, 2007 WL 405926, at *1 (N.D. Ohio Feb. 1, 2007), district courts generally evaluate these motions by determining whether (1) there has been an intervening change in controlling law, (2) new evidence has been submitted, or (3) there is a need to correct a clear error or prevent manifest injustice.” Kinzel, 2016 WL 951531, at *9 (citing Rodriguez, 89 Fed.Appx. at 959 (citing Reich v. Hall Holding Co., 990 F. Supp. 955, 965 (N.D. Ohio 1998))). None of the reasons identified by Vista satisfy these three factors or support the motion for reconsideration. Vista does not contend that it did not obtain responsive ESI discovery in categories 1, 2, 4, 5, or 6,[3] which included discovery of backup systems and lost or deleted materials. In fact, in an earlier report regarding the ESI discovery, Vista reported that large numbers of “responsive files” were produced—including “50,000 files ... that Champion swore it was deprived of and no longer had access to, because it claimed Defendant Gibson misappropriated its only copy and it alleged that these files were not backed up in any manner.” (Doc. No. 470 at 20057.) *3 Additionally, Vista explained to the Court that the production of Champion's ESI data took longer than expected because: 1. Champion and BC&G Weithman included legacy systems, software or applications such that processing the ESI took longer than normal and could not be completely automated. 2. User files and data were spread over multiple devices and two locations. 3. Instead of bulk or parallel processing of all ESI data at once, the processing of ESI was done sequentially one data set or device at a time and there were a significant number of devices. This was done to ensure that Mr. Curtin personally reviewed the results to conform to the protocol and Court's orders. (Id. at 20058.) The Court's decision to exercise its discretion and shift the cost of the ESI discovery to Vista was not based on category 3 information alone, but on the “nature of the accessibility of the electronically stored information sought by Vista” with respect to all six categories of ESI discovery. (Order at 18889.) As Vista acknowledged in its progress report to the Court, that discovery included backup tapes, deleted material, and legacy systems. These types of ESI discovery are considered not reasonably accessible sources. See The Sedona Principles, Second Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production at 46. Thus the Court declines to alter its decision to shift the cost of ESI discovery to Vista. C. Conclusion For all of the foregoing reasons, Vista's motion for reconsideration is denied. IT IS SO ORDERED. Dated: March 29, 2016. Footnotes [1] All references to page numbers are to the page identification numbers generated by the Court's electronic docketing system. [2] Champion's argument that Vista's motion for reconsideration does not satisfy the requirements of Fed. R. Civ. P. 59 or 60 is inapposite, and will not be further addressed by the Court. [3] The categories ordered by the Court for ESI discovery are as follows: (1) Files and Directories that include, list or catalog all documents and data on its systems, laptops, desktops, servers, backups that were initially created prior to February 26, 2013. (2) All Files, Directories and mailboxes containing correspondence created or accessed by Matthew Gibson with respect to suppliers, distributors and customers while at Champion. (3) The backup tape or tapes in existence as of February 26, 2013 and on the date this lawsuit was filed in Crawford County. (4) Backup system or application logs showing listings of all files backed up on servers, desktops, and laptops in the month prior to February 26, 2013. (5) Access logs and any logs reflecting activities by Matthew Gibson during the period from January 1, 2013 to February 26, 2013. (6) Any system information indicating that Champion data has been lost or deleted and the circumstances thereof. (MJ Order at 19388.)