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Are Back-up Servers and Back-up Tapes the Same Thing in eDiscovery?

Posted on April 23rd, 2014

In the last post, we discussed the Defendant’s meager ESI production in Knickerbocker v. Corinthian Colleges, Case NO. C12-1142JLR (W.D. Wash. April 7, 2014). Pending is Plaintiff’s Motion for Sanctions for failing to produce Plaintiffs’ email communications within their control, among other deficiencies. (Read the prior post for a fuller recap of the facts.)

Defendant’s outside counsel had initially asserted that the back-up tapes could not be accessed without shutting down the back-up servers, and such was prohibitively expensive. Later, they entered into a stipulated order that the back-up server be searched. Defendant filed a Verification with the court that “all electronic sources and/or servers” were searched. However, it became clear that they did not search the back-up tapes, nor did Defendant believe it had a duty to search the back-up tapes, only the servers. Defense witness testimony included the statement: “the tape is an entirely different ballgame from the servers.”

Plaintiff trial lawyers objected to this, claiming that they had no idea in the Stipulated Order that Defendant sought to make a distinction between back-up tapes and back-up servers; that they understood the Order to apply “generally to back-up media.”

At the first hearing on sanctions, Defendant’s in-house counsel attempted to fix the problem by contradicting the outside counsel’s prior assertion that searching the back-up tapes was prohibitively expensive. Looking to avoid getting smacked with sanctions, Defendant’s in-house counsel assured the judge in open court that it could be done.

The court agreed to allow Defendant the time and opportunity to search the back-up tapes. It did, over a long period of time and after a number of continuances (that pushed back trial dates), but approximately 3,000 additional email chains were tendered to Plaintiff (the original production was only 110 email threads.)

Plaintiff brought a second Motion for Sanctions. The court agreed that Defendant acted in bad faith by clear and convincing evidence due to the total lack of litigation hold and by conflicting assertions and inaccurate testimony by inside counsel, outside counsel and key employees. The court noted that Defendant’s attempt to influence (if not misdirect) the court with unsubstantiated information fell below the standards of professional conduct.

So what sanction is warranted in this action? The court noted that the ESI was eventually tendered, and “produced documents cannot form the basis for a spoliation instruction.” The court therefore ordered monetary sanctions against BOTH Defendant in the amount of $25,000 and its outside counsel law firm at $10,000 payable to the court for their actions throughout the litigation. The court also ordered payment of Plaintiff’s attorney fees for the motions.

ILS – Plaintiff eDiscovery Experts

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