Danielle Mailhoit, Plaintiff, v. Home Depot U.S.A., Inc., et al., Defendants No. CV 11-03892 DOC (SSx) Signed August 29, 2012 Counsel Andrew H. Friedman, Gregory David Helmer, William O. Kampf, Kenneth A. Helmer, Helmer Friedman LLP, Culver City, CA, for Plaintiff. Elizabeth A. Falcone, Leah C. Lively, Micah D. Fargey, Ogletree Deakins Nash Smoak & Stewart PC, Portland, OR, Judy the-Ping Sha, Ogletree Deakins Nash Smoak & Stewart PC, Los Angeles, CA, Michael J. Sexton, Ogletree Deakins Nash Smoak and Stewart PC, Costa Mesa, CA, for Defendants. Segal, Suzanne H., United States Magistrate Judge ORDER GRANTING DEFENDANT'S “MOTION THAT DISCOVERY FROM DISASTER RECOVERY TAPES NOT BE PERMITTED” I. INTRODUCTION *1 On July 19, 2012, Defendant filed a Motion [For An Order] That Discovery From Disaster Recovery Tapes Not Be Permitted. (Dkt. Nos. 63, 82). The parties filed a Joint Stipulation concurrently with the Motion pursuant to Local Rule 37, (“Jt. Stip.,” Dkt. No. 63), including the declarations of Elizabeth A. Falcone and Yoko Y. Lim in support of the Motion, (Dkt. Nos. 64-65), and the declaration of Kenneth Helmer in opposition to the Motion. (Dkt. No. 66). On August 7, 2012, Defendant filed a Supplemental Memorandum in support of the Motion. (Dkt. No. 104). The Court held a hearing on the Motion on August 21, 2012. For the reasons stated below, Defendant's Motion is GRANTED. II. THE PARTIES' CONTENTIONS Defendant requests an order prohibiting Plaintiff from seeking production of emails created prior to 2010 that are currently stored only on disaster recovery tapes because they are not readily accessible and Plaintiff has failed to show good cause for their production. (Jt. Stip. at 1). Specifically, Defendant argues that the expense of producing pre-2010 outweighs any potential benefit because: (1) this is a single-plaintiff case; (2) discovery has already been extensive; (3) Defendant met its preservation obligations; (4) the cost of restoring pre-2010 emails would be in the millions of dollars, “dwarfing any possible recovery”; and (5) Plaintiff has not identified any relevant emails likely to be found. (Id.). Defendant further noted at the hearing that Plaintiff has not marked any previously-produced email as a deposition exhibit. Plaintiff argues that pre-2010 email should be produced because email “constituted a substantial means of communication” among Defendant's management. (Id. at 3). Plaintiff notes that email is being sought from a limited number of custodians whom the Court has already concluded are likely to have relevant information. (Id. at 3). Plaintiff further contends that the Federal Rules favor disclosure, which is especially warranted here because: (1) Defendant failed to timely object to the production of pre-2010 emails; (2) Defendant failed to keep accurate documentation and logs of its disaster recovery tapes “as a shield to avoid discovery” and should not be rewarded for its failure to keep evidence in a reasonably accessible format; and (3) Defendant has failed to meet and confer, which could have led to “a limited, but efficient, sampling” of disaster recovery tape data. (Id. at 3-4, 29-30). III. DISCUSSION A. Applicable Law Governing Whether Information Is “Reasonably Accessible” “Electronic documents are no less subject to disclosure than paper records,” including electronic documents that exist only on backup tapes. Rowe Entm't, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 428 (S.D. N.Y. 2002); see also Simon Property Group L.P. v. MySimon, Inc., 194 F.R.D. 639, 640 (S.D. Ind. 2000) (“deleted” electronic documents are discoverable). However, “[t]he application of [the] various discovery rules is particularly complicated where electronic data is sought because otherwise discoverable evidence is often only available from expensive-to-restore backup media.” Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 316 (S.D. N.Y. 2003). *2 According to Federal Rules of Civil Procedure Rule 26(b)(2)(B), A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. The evaluation of whether the requested document production “is kept in an accessible or inaccessible format ... corresponds closely to the expense of production.” Zubulake, 217 F.R.D. at 319 (internal parentheses omitted). Generally, backup tapes are considered to be “inaccessible.” Id. As the Zubulake court explained, Tape drives have data capacities of anywhere from a few hundred kilobytes to several gigabytes. Their transfer speeds also vary considerably ... The disadvantage of tape drives is that they are sequential-access devices, which means that to read any particular block of data, you need to read all the preceding blocks. As a result, the data on a backup tape are not organized for retrieval of individual documents or files [because] ... the organization of the data mirrors the computer's structure, not the human records management structure. Backup tapes also typically employ some sort of data compression, permitting more data to be stored on each tape, but also making restoration more time-consuming and expensive, especially given the lack of uniform standard governing data compression. Id. (internal quotation marks and footnotes omitted). Moreover, “[b]ackup tapes must be restored using a process similar to that previously described, fragmented data must be de-fragmented, and erased data must be reconstructed, all before the data is usable. That makes such data inaccessible.” Id. at 320. “A court can limit discovery if it determines, among other things, that the discovery is: (1) unreasonably cumulative or duplicative; (2) obtainable from another source that is more convenient, less burdensome, or less expensive; or (3) the burden or expense of the proposed discovery outweighs its likely benefit.” Favale v. Roman Catholic Diocese of Bridgeport, 235 F.R.D. 553, 558 (D. Conn. 2006) (internal quotation marks omitted). “The decision 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.” Tucker v. American Intern. Group, Inc., 281 F.R.D. 85, 92 (D. Conn. 2012) (quoting Fed. R. Civ. P. 26, Advisory Committee Note to the 2006 amendments to Rule 26(b)(2)). According to the Advisory Committee, factors to consider in assessing whether a party has established “good cause” include: *3 (1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties' resources. Id. at 92 n.13. These factors are not a “checklist,” but “should be weighed by importance.” Johnson v. Neiman, 2010 WL 4065368 at *2 (E.D. Mo. Oct. 18, 2010). B. Emails Stored On Disaster Recovery Tapes Are Inaccessible And Plaintiff Has Failed To Show Good Cause For Their Production Defendant has met its burden to establish that emails stored only on disaster recovery tapes are “inaccessible.” As noted in the previously-filed declaration of Mark Brown, prior to January 2010, Defendant maintained its email internally. For disaster recovery purposes, Defendant backed up email daily on approximately 30 email servers in North America. (Brown Decl. at ¶ 3, Dkt. No. 53). The “disaster recovery data was not archived or indexed, but instead, the disaster recovery system stored only an image of the entire system at once.” (Id. at ¶ 6). Defendant maintains approximately 32,000 disaster recovery tapes for the period from May 2005 to January 2010. (Id. at ¶ 4). Assuming that typically the same number of disaster recovery tapes were generated per month, Defendant states that approximately 6,400 tapes would be generated in one year. (Jt. Stip. at 22). Email data “often migrated between multiple servers through an ad hoc assignment process based on server efficiency and storage space,” meaning that even when a specific date is provided, “a restore of [as many as] 50 tapes or more may be required to discover the location of a single user's account to access the user's data for that date.” (Brown Decl. at ¶ 7). According to the previously-filed declaration of Andrew Mayer, (Dkt. No. 52), Defendant's vendor charges $225 per tape for restoration. (Mayer Decl. ¶ 10). Therefore, based on Defendant's evidence, which Plaintiff does not dispute, it appears that a complete search of all of Defendant's disaster recovery tapes for 2008 and 2009 would be extraordinarily expensive, both in restoration costs and attorney review time. Even if the Court determined that it was not necessary to restore daily tapes for every single day during that period, restoration costs of a meaningful subset of disaster recovery tapes would undoubtedly be considerable due to the need to restore multiple tapes to identify where each custodian's emails were stored on any given date. Plaintiff, on the other hand, has not met her burden to establish good cause for the production of this “inaccessible” data. Plaintiff generally asserts that the custodians whose emails are sought presumptively have relevant evidence, (Jt. Stip. at 27-28), and argues that Defendant should have disclosed earlier in the litigation that its disaster recovery tapes are not reasonably accessible.[1] (Id. at 30-35). Plaintiff further argues that Defendant should not be rewarded for failing to maintain evidence in a reasonably accessible format or to index its disaster recovery tapes. (Id. at 28-30, 36). Finally, Plaintiff contends that a “sampling” of the data should be undertaken before conducting a cost-benefit analysis. (Id. at 26). *4 Certain factors identified by the Advisory Committee for a “good cause” assessment in this context could be construed as favoring Plaintiff. The request for pre-2010 emails is reasonably specific, as it involves the same custodians and search term parameters that Defendant is applying to its post-January 2010 email production. Furthermore, the issues at stake, gender and disability discrimination, are important, and Defendant clearly has much greater resources than Plaintiff. See Tucker, 281 F.R.D. at 92 n.13. However, the remaining factors, which the Court finds of greater weight in this instance, strongly favor Defendant. Most importantly, Plaintiff has failed to substantiate her prediction that the production of pre-2010 emails will be important or useful to her case. Tucker, 281 F.R.D. at 92 n.13. Defendant has already produced approximately 3,000 emails and is in the process of reviewing approximately 30,000 more that are reasonably accessible. (Jt. Stip. at 1). As Defendant noted at the hearing, however, Plaintiff has not marked any of the previously-produced emails as a deposition exhibit. Furthermore, Plaintiff was unable to explain at the hearing what she believes discovery of pre-2010 email will disclose, or the specific basis for any belief that relevant information will be found. At the same time, it appears that “the quantity of information available from other and more easily accessed sources” is ample. Tucker, 281 F.R.D. at 92 n.13. Thousands of emails have already been produced, in addition to other documents responsive to Plaintiff's production requests. Plaintiff has also served interrogatories and has been allotted fifteen depositions. (Falcone Decl. ¶ 13). Conversely, in light of the above, the “likelihood of finding relevant, responsive information” concerning events in 2008 and 2009 “that cannot be obtained from other, more easily accessed sources,” appears minimal. Tucker, 281 F.R.D. at 92 n.13. Plaintiff's assertion that a “sampling” must be conducted before the Court conducts a cost-benefit analysis misstates the case law. (Jt. Stip. at 26). In Zubulake, the court ordered a sampling of back up tapes so that “the marginal utility test will not be an exercise in speculation—there will be tangible evidence of what the backup tapes may have to offer.” Zubulake, 217 F.R.D. at 324; (see also Jt. Stip. at 26). First, in contrast to the Zubulake plaintiff, Plaintiff here has already received a “sampling,” i.e., Defendant's production of accessible emails, but Plaintiff was unable to identify a single email already produced that contained relevant, probative evidence, even during the period closest to Plaintiff's termination. Second, Rule 26(b)(2)(B) does not by its terms require sampling when the burden shifts to the requesting party to establish “good cause.” As noted above, Plaintiff was unable to identify at the hearing what, exactly, she expects to find in the production of pre-2010 email, and has not yet used any emails in a deposition. Plaintiff has not explained why she anticipates that pre-2010 emails would be a more promising source of evidence than those already produced. Finally, although Plaintiff argues that Defendant has effectively shielded itself from discovery of pre-2010 email by failing to index its disaster recovery tapes and switching to a new email system in January 2010, it does not appear to the Court that Defendant acted in bad faith or has otherwise failed to produce relevant information from readily accessible sources. Tucker, 281 F.R.D. at 92 n.13; see also Peterson v. Seagate U.S. LLC, 2011 WL 861488 (D. Minn. Jan. 27, 2011) (“[Defendant] was not under any duty to preserve the evidence in a readily accessible format at the time it was deleted or stored on backup tapes.”). Accordingly, Plaintiff has failed to establish good cause for the production of emails from the disaster recovery tapes. IV. CONCLUSION *5 For the foregoing reasons, Defendant's Motion [For An Order] That Discovery From Disaster Recovery Tapes Not Be Permitted is GRANTED. Defendant is not required to recover emails from its disaster recovery tapes in response to Plaintiff's discovery requests. Nothing in this Order shall be construed to relieve Defendant of its burden to produce potentially responsive email from January 2008 to January 2010 stored in other media, such as custodian hard drives or paper copies. IT IS SO ORDERED. Footnotes [1] The Court rejects this “waiver of objection” argument by Plaintiff. Based upon the record before the Court, it appears that Defendant was reasonably diligent and prompt in bringing this issue to Plaintiff's attention, once Defendant began its production of documents.