Major Tours, Inc. v. Colorel

720 F. Supp. 2d 587 (2010)


On March 9, 2009 D moved for a Protective Order to avoid production of emails that now were available only on backup tapes. D contends that restoring emails is complicated and expensive because the backup tapes are designed to reproduce the entire network environment in the event of a crash, and not for retrieval of particular documents. P argued, among other things, that Ds' failure to maintain the emails in an accessible format should not provide a basis upon which to avoid having to produce them, because ds had an obligation to preserve them for litigation. Judge Schneider ordered the production of litigation hold letters. The Judge also found that September 11, 2003, was the date Ds' duty to preserve relevant evidence was triggered by a letter threatening litigation regarding racial profiling in bus inspections. The Judge found that an informal and probably inadequate hold letter was not issued until November 5, 2005, and that the first formal hold letter was not sent until March 22, 2007. The Judge determined that the emails were not reasonably accessible. P offered no evidence rebutting Ds' affidavit estimating the cost of recovery at $1.5 million. The Judge examined the seven factors under Rule 26(b)(2)(B). These include: (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 further information; (6) the importance of the issues at stake in the litigation; and (7) the parties' resources. Most of these factors tilted in Ds' favor. He also found that substantial information was available from other discovery sources, that the likelihood of finding critical information was largely speculative, that the emails are likely to be cumulative of evidence already produced, and that the resources of the State of New Jersey, while vast, are not unlimited. Because most of the emails of the key individuals had been produced, there was a relatively small likelihood that the failure to preserve the emails had resulted in relevant emails becoming archived. There was no evidence that Ds intentionally frustrated P. The Judge ordered a limited number of the tapes accessed with P and D had to share costs and to search the March 2006 tapes, P had to pay all costs. The remainder of the tapes did not have to be produced at all. P moved for reconsideration, and the Judge denied the motion. P appealed. On appeal, the question is whether Judge Schneider gave appropriate weight to Ds' culpability for the emails being inaccessible, given that the reason for the increased costs of recovery was Ds' failure to institute a timely and effective litigation hold.