Monday’s blog discussed the Zubulake I case, where Judge Shira Scheindlin looked at eDiscovery accessibility to categorize different types of electronic data before a cost shifting analysis. The more inaccessible the data is, the more likely that cost shifting is appropriate. She ordered the defendants to produce a small set of the inaccessible emails to judge the relevance and expense of full production. So will the defense have to produce all the back-up emails, and who will pay for it? That is the subject of Zubulake III, 216 F.R.D. 280 (N.Y.S.D. 2003).
The Court had allowed the plaintiff to choose the dates of the emails for the sample set, which produced 600 relevant emails. The cost of restoring the back-up tapes from the IT expert and the attorney review cost was $19,003.43, and the defendants estimated the total cost would be $165,954 to restore and review the remaining tapes, plus $107,694 for attorney review. Id. at 283.
The more likely the backup tapes contained relevant data, the fairer it would be that the producing party bears the costs of production. The Court found that the sample back-up emails told “a compelling story of the dysfunctional atmosphere” of the plaintiff’s former sales group. Id. at 285. The emails also revealed contradictions between the written emails and statements at oral depositions of the defendants. Id. at 286. However, the court noted that the emails did not contain evidence that the plaintiff was treated differently due to her gender. Id.
The Court went through a seven factor test to weigh the potential relevancy of the emails. The backup emails revealed that some defendants had tried to delete emails after the plaintiff had filed an EEOC complaint. Id. at 287. This fact, plus the inconsistencies in testimony and the fact that potential damages could be in the millions, led the Court to believe that the remaining tapes would contain additional highly relevant data. The Court ordered the defendants to pay 75 percent of the costs and the plaintiff to pay 25 percent, not counting the expense of reviewing for attorney-client privilege.
Email correspondence has become ubiquitous in electronic data discovery, and this case evidences why. There may be more truth to be found in real-time email correspondence than at oral depositions. For more information about forensic analysis, trace artifacts, meta data and finding hidden documents in ESI productions, visit our computer forensics webpage or call us at 888-313-4457.