Court Declines to Compel Production of Backup Tapes, Active Emails in Native Format
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United States ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225 (S.D. Cal. 2015)
In this case, the court addressed Plaintiffs’ demands that Defendants restore ESI contained on disaster recovery backup tapes for production in native format and produce active emails in native format with metadata. Upon finding the backup tapes inaccessible, the court undertook the relevant cost-shifting analysis and determined that if Plaintiffs wanted production of the contents of the backup tapes in native format, they would be responsible for the cost. The court also determined that TIFF images were a reasonable format for production and declined to compel production of active emails in native format or production of metadata. Accordingly, “Plaintiffs’ requests for the production of Backup Databases, the Active Emails in Native, and the Metadata” were denied without prejudice.
In this lengthy opinion addressing issues of inaccessibility and the format of production, the court addressed Plaintiffs’ request for “all documents” within Defendants’ control, including the contents of Defendants’ disaster recovery backup tapes and active emails, and Plaintiffs’ instruction that Defendants “’produce each original document with all non-identical copies and drafts of that document’” which Plaintiffs asserted required production in native form.
Summarizing broadly, the court first addressed the question of the backup tapes’ inaccessibility and reasoned that “regardless of the cause of their inaccessibility, ‘[b]ackup tapes are considered an inaccessible format, and, thus, shifting the costs of producing data from backup tapes may [always] be considered’” and that “Plaintiffs may feel free to decry Defendants’ contentions that it will take years and millions to restore this ESI to Native form, but these declamations do not disprove Defendants’ assertion that the Backup Data has become inaccessible as part of their typical data retention schematic. And such ESI has been held, by dozens of jurists, to be inaccessible as a purely technological matter.”
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