UNITED STATES OF AMERICA ex rel. LAURIE SIMPSON, Plaintiff, v. BAYER CORPORATION, et al., Defendants Civil Action No. 05-3895 (JLL)(JAD) United States District Court, D. New Jersey Signed April 16, 2020 Counsel Andrew Augustine Caffrey, Iii, David Edward Dauenheimer, Office of the U.S. Attorney District of New Jersey, Marihug Cedeno, District of New Jersey, Newark, NJ, for Plaintiff. Kate Elizabeth Janukowicz, Jason Robert Halpin, Lawrence S. Lustberg, Gibbons PC, Newark, NJ, for Defendants. Cavanaugh, Dennis M. (Ret.), Special Master ORDER AND OPINION OF THE SPECIAL MASTER *1 This matter comes before the Special Master on a letter motion submitted by Plaintiff-Realtor (“Realtor”) in support of a motion to compel defendant Bayer Corporation (“Bayer”) to produce: (1) data from Bayer's accounts payable database, SAP, reflecting Trasylol and Avelox related remuneration to healthcare providers, and (2) all non-privileged, responsive documents from the custodial files of Tim Daniels and James Petersen. In the alternative, Realtor seeks a finding that Bayer failed to adequately preserve these core documents. Realtor further moves to compel Bayer to promptly provide Realtor with its final privilege assertions on the clawback documents. Bayer cross-moves for a finding that Realtor failed to take steps necessary to preserve two personal email accounts. Bayer also moves to compel Realtor to produce or identify documents responsive to Bayer's Requests for Production or an admission that Realtor has no responsive documents. After considering the submissions of the parties, based upon the following, it is the opinion of the Special Master that Realtor's and Bayer's requests are DENIED. DISCUSSION I. Arguments of the Parties A. SAP Data Bayer's SAP database is its central accounting system. It records detailed information about all payments that Bayer makes, including the payee, payment date, amount and supporting documentation. The database includes a record of all renumeration that Bayer has provided to healthcare providers. Data from all of Bayer's other financial tracking systems feed into SAP for processing, approval, and disbursement. Thus, SAP is the most comprehensive and accurate source of Bayer's payments to healthcare providers. According to Realtor, in February 2009, Bayer admitted in response to discovery requests in the then-ongoing Trasylol MDL that (i) SAP “contains information regarding payments to [healthcare providers]” and “records to whom, when, and in what amount a payment was made”; and (ii) records dating back to 1999 were reasonably accessible, with earlier records archived. Realtor argues that SAP payment records are relevant to its False Claim Act case and that Bayer was therefore obliged to preserve the records during the pendency of the litigation. Realtor argues that the two SAP spreadsheets produced by Bayer to date are inadequate because numerous data elements are missing and the spreadsheets only reflect payments for just a small subset of Bayer's Trasylol or Avelox promotional programs for only three of the relevant years requested. Specifically, the spreadsheets only include data from 2002, 2003, and 2006—yet the alleged illegal kickback scheme spans the entire period between 1998 and 2007. Realtor argues the spreadsheets do not sufficiently respond to Realtor's requests because, for example, they do not include the following data elements that Realtor has gleaned from invoices and other documents in Bayer's production, which were fed into SAP: (1) the SAP invoice number, (ii) the name of the vendor or payee, (iii) explanation of payment, (iv) date of disbursement, (v) project code, (vi) function date, (vii) cost description, (viii) expense type, (ix) check number, (x) program location, (xi) requestor name, (xii) employee ID, and (xiii) manager. Realtor argues that such information is fundamental to proving the who, what, where, when and how of an alleged illegal kickback payment. Realtor thus seeks an order compelling Bayer to produce a full set of SAP data for the entire period at issue (1998 to 2007) or admit that it has destroyed such records in violation of its discovery obligations. *2 Realtor argues that the SAP payment data is clearly relevant and that all six proportionality considerations weigh in favor of production. First, qui tam provisions of the False Claims Act are important, potent tools for protecting the public interest by rooting out, preventing, and prosecuting fraud against the government. Second, the amount in controversy—hundreds of millions of dollars—favors production of the SAP data. Third, Realtor has limited alternative means to access or obtain the payment records contained in the SAP database. Realtor asserts it would have to subpoena every doctor and hospital who ever received a Trasylol of Avelox related payment, many of whom remain unidentified because Bayer has not produced sufficient SAP data. Fourth, as a multi-billion dollar corporation, Bayer has greater resources than Realtor and can bear the cost of producing relevant discovery. Fifth, the SAP payment information is highly probative of key issues in the case and fundamental to resolving core disputes. Sixth, any burden involved in producing the SAP data is far outweighed by its benefits, as evidence of Bayer's payments to healthcare providers bear directly on core elements of Realtor's claims. Bayer argues it has already expanded significant effort and diligence to locate and produce more than 65,000 pages (totaling more than 88,000 entries) of financial tracking data. Those productions include more than 2,800 entries of SAP data. Bayer says it has spent dozens of hours with its in-house data experts and expanded significant effort to query its data archives for the financial information Realtor seeks. From those searches Bayer has produced relevant documents from its financial database archive. Bayer also points out that the financial databases produced included those databases that were fed into SAP, the central accounting system. Thus, Bayer argues that the SAP data is duplicative of documents that Bayer has already produced in its ESI production. Bayer further argues that Realtor's motion is based on a misconstruction of Bayer's February 2009 MDL interrogatory response. Bayer argues that it never affirmed that any relevant and responsive SAP records existed in 2009, let alone that Bayer had more records than what it has produced to date in this litigation. Rather, Bayer maintains that its interrogatory response merely explained generally that the type of data SAP would include and agreed to “search its Accounts Payable database for records of [relevant] payments.” Bayer asserts that it has searched its SAP database, has produced all responsive and accessible SAP data in its possession, and has affirmed it has nothing further to produce. Bayer argues that there is no indication that it ever had the additional SAP data Realtor seeks when its preservation obligation arose. Bayer argues it has already expanded significant time and effort searching for SAP data and has determined that no additional SAP data can be located or is reasonably accessible. B. Documents from Mr. Daniels and Mr. Petersen Tim Daniels and James Petersen were employees in Bayer's Scientific Affair division—the division within Bayer that devised and conducted CTMs and other alleged illegal kickback programs to promote Trasylol and Avelox. Mr. Daniels served as Field Manager (and later Associate Director). Mr. Petersen served as an Associate Director. Mr. Daniels helped launch Bayer's CTM program in 1998, approved Trasylol speaker programs and grant requests at the heart of Realtor's claims, and remained actively involved with Bayer's promotional activities for Trasylol through 2004. Mr. Petersen was also involved with coordinating Bayer's speaker programs, grant requests, and CTM programs, as well as Bayer's efforts to expand off-label uses of Trasylol. According to Realtor, both Mr. Daniels and Mr. Petersen raised concerns regarding Bayer's programs for promoting Trasylol and Avelox and the role of its Scientific Affairs division in those endeavors. By the end of 2004, Bayer removed Mr. Daniels from his Scientific Affairs position and terminated Mr. Petersen's employment. Realtor argues it has sought the production of documents from these two custodians for a number of years. According to Realtor, Bayer has failed to produce responsive custodial data for these individuals. Realtor points to an absence of emails for Mr. Daniels and Mr. Petersen from 2003 to 2004 in Bayer's document production. The production of emails from Mr. Daniel's custodial file declined from approximately 7,300 in 2001, to 3,900 in 2002, to just 225 documents in 2003 and 2004. There was no custodial data produced from Mr. Petersen after 2002. Realtor argues that not only did much of Bayer's alleged illegal conduct occur during these two years, but this was also the period during which Realtor raised compliance concerns regarding Bayer's CTM programs. Realtor argues that despite these notable gaps in email production, Bayer maintains that no documents have been withheld. *3 Realtor indicates that on February 1, 2019, Bayer disclosed that it was working to complete additional productions that contain numerous documents from Mr. Daniels and Mr. Petersen. Bayer indicated that these additional documents were identified from a newly discovered archive. Realtor subsequently requested that Bayer identify where this archive was located, what it contained, how Bayer came to identify it years into discovery, and how it was searched. Bayer refused to provide this information but stated that it was obtained from a “third-party vendor.” Realtor indicates that she subpoenaed Mr. Daniels for documents and that he produced numerous documents that had not been produced by Bayer, including documents from the missing 2003 and 2004 time period. Realtor argues that this confirms the inadequacy of Bayer's production. Realtor thus argues that Bayer should be compelled to conduct a further search for such documents, including all archives, whether held by Bayer or any third-party who has maintained custody of either individual's communications or documents, and produce all responsive documents or, to the extent it maintains it has searched all available sources, to admit that it failed to adequately preserve these materials. Realtor argues that Mr. Daniels and Mr. Petersen were deeply involved with Bayer's CTMs and other activities central to Realtor's claims and thus their documents are relevant. Realtor further asserts that all six proportionality considerations weigh in favor of production. First, qui tam provisions of the False Claims Act are important, potent tools for protecting the public interest by rooting out, preventing, and prosecuting fraud against the government. Second, the amount in controversy—hundreds of millions of dollars—favors production. Third, Realtor does not have independent access to the emails in Bayer's possession that should have been subject to a litigation hold. Fourth, as a multi-billion dollar corporation, Bayer has greater resources than Realtor and can bear the cost of producing relevant discovery. Fifth, as directors within Bayer's Scientific Affairs division with specific roles related to Trasylol, Mr. Daniels and Mr. Petersen were intimately aware of Bayer's scheme to influence doctors to administer Trasylol and prescribe Avelox through illegal payments. As such, Realtor asserts that Mr. Daniels and Mr. Petersen's contemporaneous emails from 2002-2004 –a time during which key events occurred—are extremely important discovery, especially in light of the age of Realtor's allegations and the potential for witness memories to have faded over time. Sixth, the burden in searching (or re-searching) its archives for Mr. Daniels and Mr. Petersen's custodial data is far outweighed by the benefits of accessing contemporaneous documents from a time period at the heart of Realtor's claims. Bayer argues it has exceeded its discovery obligations to search for and produce these documents and has not failed to preserve anything. Bayer explains that after Realtor contended that it did not produce enough records from 2003 and 2004, Bayer spent hours with its in-house data experts and searched tirelessly through every data archive that it thought might possibly contain responsive data from Mr. Daniels and Mr. Petersen. As a result, Bayer found and produced approximately 30,000 additional pages of documents from Mr. Daniels (approximately 7,500 documents) and approximately 6,000 additional pages of documents from Mr. Petersen (approximately 700 documents). Bayer asserts that Realtor's suggestion that Bayer's preservation efforts are insufficient is speculative and cannot lead to an inference of destruction. Bayer believes that the most plausible explanation for the reduced volume of emails in 2003 and 2004 is that Mr. Daniels and Mr. Petersen sent and received fewer emails during this period that are responsive to Realtor's requests. Moreover, Bayer argues that it was under no preservation obligation during that 2003-2004 time period. Bayer argues that Realtor has failed to show that Bayer ever possessed more data for Mr. Daniels and Mr. Petersen from that time period, let alone at the time the Complaint was partially unsealed in July 2008, thereby triggering Bayer's preservation obligation. Bayer argues that without an obligation to preserve there can be no spoliation. *4 Bayer maintains that it has reasonably searched the archives that were held by third parties and there is nothing more for it to produce. Bayer argues that the documents from Mr. Daniels’ subpoenaed production cited by Realtor is misleading as twelve of the seventeen documents did not hit on any relevant search terms or were not relevant to the litigation and thus would not have been produced in any event. For the five responsive documents, Bayer argues that the fact that Mr. Daniels took those documents from Bayer does not suggest that Bayer did anything improper, especially given the age of the litigation and the length of time between the creation of those documents and when Bayer first learned of the litigation in July 2008. Bayer argues that the existence of the five documents cannot support a motion to compel or a finding that Bayer failed to preserve any documents. C. Clawback Documents On March 15, 2019, the Special Master granted in part Realtor's motion to compel Bayer to identify which of the 22,000 Trasylol MDL documents Bayer claimed were privileged and instructed Bayer to assert its privilege claims so that Realtor could evaluate and challenge them as appropriate. On May 21, 2019, Bayer provided Realtor with a list of over 5,900 documents of the 22,000 documents preliminary identified over which it intended to assert a claim of privilege. Realtor reviewed Bayer's clawback redaction log and provided Bayer with a written statement of disagreement challenging Bayer's privilege assertions for approximately 3,000 of the documents. The parties then met and conferred. Realtor agreed to narrow the list of documents it intended to challenge and on August 23, 2019, provided Bayer with its narrowed list of documents. Bayer promised to re-review the list and confirm whether it intended to maintain its assertion of privilege. Bayer has indicated that it intended to produce its responses to Realtor by January 15, 2020. Accordingly, no judicial intervention is needed at this time. D. Realtor's Personal Emails Bayer argues that Realtor failed to take steps necessary to preserve two personal email accounts that would have contained documents responsive to Bayer's discovery requests. Realtor created a yahoo account, former_employee400@yahoo.com, in late 2007. Realtor used the account as part of a January 2008 posting on a message board asking Bayer employees to contact her. Bayer argues that while Realtor claims that she does not believe she received any emails in response to the post, there is no way to verify this information. Realtor also created an AOL account, tclsim@aol.com in or around 1998. Realtor produced correspondences indicating that she contacted AOL in January 2018 and January 2019 because her emails were deleted due to account inactivity for 90 days. Bayer argues that Realtor has not disclosed when she stopped accessing the AOL account and admits that she does not know when the emails were deleted. Bayer therefore asserts that it is indisputable that Realtor failed to take steps to preserve the Yahoo and AOL email accounts despite an obligation to do so. Bayer argues that such preservation steps should have included downloading and backing-up a copy of all her emails and investigating the relevant email retention policies for AOL and Yahoo. Bayer argues that Realtor cannot credibly claim that she had no reason to suspect that her own email accounts contained relevant information that needed to be preserved. Bayer argues that Realtor has admitted that she used the accounts to send or receive communications relevant to the lawsuit. Bayer further asserts that with respect to the AOL account, this account was Realtor's primary account for a period of time and the account she used to forward emails from her Bayer email account. In response, Realtor argues that Bayer has failed to carry its burden of demonstrating that the emails sought from Realtor's personal AOL and Yahoo accounts would have any importance to this case, that Bayer's claims or defenses are prejudiced without these emails, of that Realtor acted intentionally to deprive Bayer of this information. *5 Realtor explains that her AOL account was created around or before 1998. In 2002, prior to filing this lawsuit, Realtor began using a separate email account (simpson@optonline.com) as her primary email account and used the AOL account less frequently. The Yahoo email account was activated in or around 2007. On January 2, 2008, Realtor posted on a Café Pharma message board asking former Bayer employees to contact her at the Yahoo email address; a copy of this post was produced to Bayer. Realtor did not believe she received any emails in response to the message board post. Bayer believes she ceased using the account in or around 2009. Realtor states that due to periods of inactivity, the service providers deleted all of her emails years ago, pursuant to their policies governing the routine maintenance and destruction of data. With respect to the AOL account, Realtor argues she has already produced dozens of emails that confirm that the emails within this account have little relevance to the claims and defenses in this action. Realtor further argues that she recently located a zip drive that contains data form her AOL account that Realtor had backed up many years ago but did not recall. Realtor is reviewing this zip drive and will produce any relevant information from the drive. E. Bayer's Requests for Production Bayer argues that despite its repeated requests for Realtor to provide complete responses to its requests for production, many are still outstanding. Bayer argues that given Realtor's repeated failure to identify responsive documents she should be compelled to confirm that she has no documents responsive to the requests. Bayer argues that Realtor has failed to respond to Bayer's First Requests for Production (“RFP”) Nos. 19-20, 24, and 28-31. With respect to RFP Nos. 19-20, Bayer argues that Realtor has not produced or identified a single document responsive to the requests. Bayer argues that the documents cited by Realtor are not affirmative reports of misconduct and do not show any threats, harassment, discrimination, or other negative employment action. With respect to RFP No. 24, Bayer argues that Realtor has failed to produce or identify a single page from any production that would be responsive to this request. Bayer further asserts that while Realtor belatedly identified a single document in written correspondence with Bayer, this document does not show any interaction between Bayer and GRUGDEX, let alone any misleading conduct. Finally, with respect to RFP Nos. 28-31, Bayer argues that the documents cited by Realtor are not responsive to the specific requests because the documents do not relate to the specific allegations Realtor made regarding the grants. In response, Realtor argues that she has more than sufficiently responded to Bayer's requests by producing numerous documents reflecting Realtor's reporting of fraud (RFP No. 19), Bayer's retaliation against Realtor (RFP No. 20), and specific kickback allegations described in the Complaint (RFP Nos. 28-31). Realtor asserts that while Bayer may disagree with the sufficiency of such evidence to establish Realtor's claims, that legal position does not compel production of information that has been produced in accordance with Federal Rule of Civil Procedure 3. II. Opinion of the Special Master Federal Rule of Civil Procedure 26(b)(1) provides that a party may obtain discovery regarding “any nonprivileged material that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” It is “well recognized that the federal rules allow broad and liberal discovery.” Pacini v. Macy's, 193 F.3d 766, 777-78 (3d Cir. 1999). Relevance is a broader inquiry at the discovery stage than at the trial stage, see Nestle Food Corp. v. Aetna Cos. & Surety Co., 135 F.R.D. 101, 103 (D.N.J. 1990), and “relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Pearson v. Miller, 211 F.3d 57, 65 (3d Cir. 2000). *6 While relevant information need not be admissible, the burden remains on the party seeking discovery to “show that the information sought is relevant to the subject matter of the action and may lead to admissible evidence.” Caver v. City of Trenton, 192 F.R.D. 154, 159 (D.N.J. 2000). When establishing the parameters of discovery relevance, it is the claims and defenses of the parties, in the Complaint and other pleadings, which set the guardrails for discoverable information. Nat'l Union Fire Ins. Co. of Pittsburgh, PA. v. Becton, Dickinson & Co., No. CV 14-4318 (CCC), 2019 WL 1771996, at *3 (D.N.J. Apr. 23, 2019). A court may deny a discovery request if “[a]fter assessing the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues, ... there exists a likelihood that the resulting benefits would be outweighed by the burden or expenses imposed as a consequence of the proposed discovery.” Salamone v. Carter's Retail, Inc., No. CIV.A. 09-5856 GEB, 2011 WL 310701, at *10 (D.N.J. Jan. 28, 2011), aff'd, No. CIV.A. 09-5856 GEB, 2011 WL 1458063 (D.N.J. Apr. 14, 2011) (citing Takacs v. Union Cty., No. CIVA 08-711 KSH/MAS, 2009 WL 3048471, at *1 (D.N.J. Sept. 23, 2009)). “The purpose of this rule of proportionality is to guard against redundant or disproportionate discovery by giving the court authority to reduce the amount of discovery that may be directed to matters that are otherwise proper subjects of inquiry.” Takacs v. Union Cty., No. CIVA 08-711 KSH/MAS, 2009 WL 3048471, at *3 (D.N.J. Sept. 23, 2009) (citing Bowers v. Nat'l Collegiate Athletic Ass'n, No. CIV. A. 97-2600 JBS, 2008 WL 1757929, at *6 (D.N.J. Feb. 27, 2008)). A party resisting discovery on the grounds of burden or expense “bears the burden of showing specifically how the request is burdensome.” Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., 2010 WL 4922701, at *3 (W.D. Pa. Nov. 29, 2010). “Requiring a responding party to perform extensive research or to compile substantial amounts of data and information does not automatically constitute undue burden” and “[i]mposing such a burden is particularly proper where ... the information is crucial to the ultimate determination of a crucial issue and where the location of the documents is best known by the responding party.” Barton v. RCI, LLC, No. CIV.A. 10-3657, 2013 WL 1338235, at *4 (D.N.J. Apr. 1, 2013) (quoting Capacchione v. Charlotte–Mecklenburg Sch., 182 F.R.D. 486, 491 (W.D.N.C.1998)). “Spoliation occurs where: the evidence was in the party's control; the evidence is relevant to the claims or defenses in the case; there has been actual suppression or withholding of evidence; and, the duty to preserve the evidence was reasonably foreseeable to the party.” Bull v. United Parcel Serv. Inc., 665 F.3d 68, 73 (3d Cir. 2012). “[A] finding of bad faith is pivotal to a spoliation determination.” Id. at 79. Sanctions for spoliation of ESI pursuant to Federal Rule of Civil Procedure 37(e), as amended effective December 1, 2015, requires a two-step analysis. First, the Court must determine if spoliation of evidence occurred, and second, the Court must determine what sanction is appropriate. Rule 37(e), governing sanctions for a party's failure to preserve ESI, provides as follows: If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: *7 (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. The burden is on the moving party to show that spoliation occurred and what sanctions are appropriate. Goldrich v. City of Jersey City, No. CV 15-885 (SDW)(LDW), 2018 WL 4492931, at *7 (D.N.J. July 25, 2018), report and recommendation adopted as modified, No. CV15885SDWLDW, 2018 WL 4489674 (D.N.J. Sept. 19, 2018). Accordingly, for the Court to first make a finding that spoliation occurred pursuant to this Rule, a party must show: (1) certain ESI should have been preserved in anticipation or conduct of litigation; (2) that evidence was lost; (3) the ESI was lost because a party failed to take reasonable steps to preserve it; and (4) that it cannot be restored or replaced. If the Court finds spoliation, it will determine an appropriate sanction considering “(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.” Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994). A finding of prejudice requires a party to “come forward with plausible, concrete suggestions as to what the lost evidence might have been” and a showing that its loss “materially affect[ed] the substantial rights of the adverse party and is prejudicial to the presentation of the case.” Magnetar Techs. Corp. v. Six Flags Theme Park Inc., 886 F. Supp. 2d 466, 481 (D. Del. 2012) (internal quotation marks omitted). Where evidence was destroyed in bad faith, “the burden shifts to the spoliating party to show lack of prejudice. A bad faith spoliator carries a heavy burden to show lack of prejudice because [a] party who is guilty of intentionally [destroying] documents ... should not easily be able to excuse the misconduct by claiming that the vanished documents were of minimal import.” Micron Tech., Inc. v. Rambus Inc., 917 F. Supp. 2d 300, 319 (D. Del. 2013) (internal quotation marks omitted). The Special Master will first consider Realtor's request for data from Bayer's accounts payable database, SAP, reflecting Trasylol and Avelox related remuneration to healthcare providers, or in the alternative, a finding that Bayer failed to adequately preserve these core documents. The Special Master cannot order a party to produce documents that a party affirms it does not possess. Bayer asserts that it does not have the full set of SAP data for the entire period at issue (1998 to 2007) and thus cannot produce it. According to Bayer, it has already expanded significant effort and diligence to locate and search its data archives for the SAP financial information Realtor seeks. From those searches Bayer has produced the relevant documents it could locate. Bayer asserts that it has searched available SAP database archives and has produced all responsive, accessible SAP data in its possession, and has affirmed it has nothing further to produce. Accordingly, the Special Master will deny Realtor's request to compel Bayer to produce additional SAP information as Bayer affirms it has no further information to produce. *8 The Special Master will also deny Realtor's request to issue a finding that Bayer has failed to adequately preserve SAP data. The duty to preserve evidence arises when a party in possession of evidence “knows or reasonably should know that litigation is pending or probable.” State Nat'l Ins. Co. v. Cty. of Camden, Civ. No. 08-5128 (NLH) (AMD), 2011 WL 13257149, at *3 (D.N.J. June 30, 2011). See also Fed. R. Civ. P. 37(e), Advisory Committee Note to 2015 Amendment (“Rule 37(e) does not purport to create a duty to preserve. The new rule takes the duty as it is established by case law, which uniformly holds that a duty to preserve information arises when litigation is reasonably anticipated.”). Here, Realtor's Complaint became unsealed in July 2008 and Bayer indisputably became aware of its duty to preserve information at that time. Realtor seeks SAP data from Bayer from 1998-2007. Realtor believes Bayer was in possession of this after its duty to preserve arose. Realtor's belief appears to be entirely based on a single interrogatory response from February 2009 related to the Trasylol multi-district litigation. However, Bayer argues that this interrogatory response never affirmed that any relevant and responsive SAP records existed in 2009, let alone that Bayer had more records than what it has produced to date in this litigation. Rather, Bayer believes its response explained generally the type of data SAP would include and that it agreed to “search its Accounts Payable database for records of [relevant] payments.” Thus Bayer asserts that this interrogatory response did not affirm that Bayer, at that time, was in possession of the SAP data Realtor now seeks. The Special Master cannot, without more evidence, make a determination that Bayer has failed to preserve SAP data. Realtor has failed to carry its burden as to any finding of spoliation of the SAP data. While Realtor apparently seeks only a finding that Bayer has failed to adequately preserve SAP data, the Special Master will not make such a finding absent a full record and proof of spoliation. Realtor points only to Bayer's February 2009 interrogatory response, which does not specify the extent of SAP records in Bayer's possession at that time. Moreover, even if all the SAP data from 1998 through 2007, sought by Realtor, was in the possession or custody of Bayer in 2009, the Special Master cannot find that there is spoliation as Realtor has failed to adequately show that the financial data it seeks “cannot be restored or replaced through additional discovery.” Fed. R. Civ. P. 37(e); see also Monolitic Power Sys., Inc. v. Intersil Corp., No. 16-1125-LPS, 2018 WL 6075046, at *3 (D. Del. Nov. 19, 2018) (sanctions under Rule 37(e) inappropriate where defendant failed to show missing instant messages “cannot be restored or replaced through additional discovery”). While SAP data may be the most comprehensive and accurate source of Bayer's payments to healthcare providers, it is not the only source. Both parties acknowledge that all of Bayer's other financial data systems rolled into SAP. Realtor has failed to sustain its burden to demonstrate why the agglomeration of information that Bayer has produced from its financial systems that fed into SAP are inadequate and cannot otherwise replace the SAP data it seeks. For these reasons, the Special Master will not issue a ruling that Bayer has failed to adequately preserve SAP data. The Special Master next turns to Realtor's request to compel Bayer to produce all non-privileged, responsive documents from the custodial files of Tim Daniels and James Petersen or in the alternative, for a finding that Bayer failed to adequately preserve these core documents. The Special Master will not order Bayer to conduct a further search for documents from the custodial files of Mr. Daniels and Mr. Petersen, including all archives, whether held by Bayer or any third-party who has maintained custody of either individual's communications or documents, and produce all responsive documents or, to the extent it maintains it has searched all available sources, to admit that it failed to adequately preserve these materials. Bayer has already affirmed that it has reasonably searched the archives that were held by third-parties and that there is nothing more for it to produce. The Special Master cannot compel a party to produce what it affirms it does not have. *9 The Special Master also declines to issue a finding at this time that Bayer failed to adequately preserve documents from the custodial files of Mr. Daniels and Mr. Petersen. While Realtor apparently seeks only a finding that Bayer has failed to adequately preserve documents from Mr. Daniels and Mr. Petersen's custodial files, the Special Master will not make such a finding absent a full record and proof of spoliation. Realtor has simply failed to meet its burden to demonstrate that documents from the custodial files of Mr. Daniels and Mr. Petersen have been lost because Bayer failed to take reasonable steps to preserve them, and that these files cannot be restored or replaced through additional discovery. Although the Special Master agrees that it is curious that there is such a disparity in email messages in the custody of Mr. Daniels and Mr. Petersen from 2003 and 2004, Realtor has failed to meet its burden to demonstrate that Bayer failed to preserve materials or that there was otherwise any spoliation. Although Realtor points to the documents from Mr. Daniels’ subpoenaed production, twelve of the seventeen documents did not hit on any relevant search terms or were not relevant to the litigation. For the five responsive documents, the Special Master cannot make a finding of spoliation because Realtor cannot show that responsive documents cannot be restored or replaced through additional discovery, as they were produced by Mr. Daniels. Accordingly, at this time, Realtor has failed to demonstrate that documents from the custodial files of Mr. Daniels and Mr. Petersen have been lost because Bayer failed to take reasonable steps to preserve it, and that these files cannot be restored or replaced through additional discovery. However, the Special Master will deny Realtor's request to issue a finding that Bayer failed to adequately preserve documents from the custodial files of Mr. Daniels and Mr. Petersen without prejudice, and allow Realtor to bring a spoliation motion in the future should she obtain the appropriate evidence. The Special Master will not address the issue regarding clawed back privileged documents as Bayer indicated that it would produce its responses to Realtor by January 15, 2020. Therefore, no judicial intervention is needed at this time. The Special Master now turns to Bayer's request for a finding that Realtor failed to preserve two email accounts. The Special Master will not make such a finding absent a full record and proof of spoliation. The duty to preserve evidence arises when a party in possession of evidence “knows or reasonably should know that litigation is pending or probable.” State Nat'l Ins. Co. v. Cty. of Camden, Civ. No. 08-5128 (NLH) (AMD), 2011 WL 13257149, at *3 (D.N.J. June 30, 2011). See also Fed. R. Civ. P. 37(e), Advisory Committee Note to 2015 Amendment (“Rule 37(e) does not purport to create a duty to preserve. The new rule takes the duty as it is established by case law, which uniformly holds that a duty to preserve information arises when litigation is reasonably anticipated.”). With respect to the Yahoo account, this account was used by Realtor to post on a messaging board in January 2008, asking Bayer employees to contact her. Realtor was thus under a duty to take the necessary steps to preserve information in this email account. However, Realtor affirms that she did not receive any responses to her post on the messaging board. Accordingly, even if Realtor violated a duty by failing to take affirmative steps to preserve this email account, there were no relevant messages in the account and thus no evidence to preserve. Unless Bayer can establish that there was evidence in this email account that was subsequently spoliated, the Special Master will not issue an Order that Realtor failed to preserve evidence. *10 With respect to Realtor's AOL account, Realtor explains that this account was created around 1998 but that prior to filing this lawsuit, in 2002, Realtor began using a different email account as her primary email account. Realtor argues that she has already produced dozens of emails from her AOL account which confirm that this account held limited relevant information and moreover, she argues that she has recently located a back-up drive which she will search for additional relevant emails. The Special Master finds that at this time there is insufficient evidence to establish that there was any relevant information in Realtor's AOL account which has been lost. Realtor has indicated that she has already produced some emails from her AOL and that she is actively searching a back-up drive for any additional relevant emails. While Realtor had a duty to preserve relevant electronically stored information in her email accounts, Bayer has failed to demonstrate that any actual relevant information has been lost. Accordingly, a curative measure under Rule 37(e)(1) is inappropriate. Moreover, Bayer has not established that Realtor acted with an intent to deprive Plaintiff of the use of this information in litigation, which is required for the Court to impose sanctions under Rule 37(e)(2). Realtor's accounts were deleted due to inactivity, not Realtor's active destruction. Moreover, Realtor has explained the steps she has gone through to contact her emails service providers in an attempt to obtain access to her accounts, further demonstrating any lack of intent. Accordingly, the Special Master will not issue a finding that Realtor failed to preserve these two email accounts. However, Bayer's request will be denied without prejudice thus Bayer will be allowed to bring a spoliation motion in the future should it obtain the appropriate evidence. Finally, the Special Master turns to Bayer's request to compel Realtor to respond to Bayer's First Requests for Production (“RFP”) Nos. 19-20, 24, and 28-31. Realtor asserts that she has responded to Bayer's requests with the information in her possession. While Bayer questions the sufficiency of the content of Realtor's responses, the Special Master will not order Realtor to response to Bayer's RFP Nos. 19-20, 24, and 28-31as Realtor has affirmed that she has responded to these requests by producing the responsive documents in her possession that could be located through a reasonable search. The Special Master cannot order Realtor to produce information that she does not have. However, the Special Master reminds both parties that they remain under a continuing duty to amend their responses to discovery as they obtain additional information.