The Court agrees that Defendant was under a duty to preserve e-mails from July 2002 to the present, and that Defendant's decision to transfer the e-mails to back-up tapes does not exempt Defendant from its responsibility to produce relevant e-mails. See, e.g.,
Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 316–17 (S.D.N.Y.2003); In re Brand Name Prescription Drugs, Nos. 94 C 897, MDL 997, 1995 WL 360526, at *1 (N.D.Ill. June 15, 1995). To permit a party “to reap the business benefits of such technology and simultaneously use that technology as a shield in litigation would lead to incongruous and unfair results.” Linnen v. A.H. Robins Co., No. 97–2307, 1999 WL 462015, at *6 (Mass.Super. Ct. June 16, 1999). On the other hand, back-up tapes are principally deployed to protect against destruction of data if the network crashes, not to catalogue information for business purposes, so to require a responding party to pay the full expense of restoration of back-up tapes may be unreasonable. McPeek v. Ashcroft, 202 F.R.D. 31, 33–34 (D.D.C.2001). Under the discovery rules, “the presumption is that the responding party must bear the expense of complying with discovery requests....” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). In assessing whether cost-shifting to the requesting party is appropriate, courts have employed the marginal utility test, McPeek, 202 F.R.D. at 34, or have looked to various factors. Zubulake, 217 F.R.D. at 322; Medtronic Sofamor Danek, Inc. v. Michelson, 229 F.R.D. 550, 553 (W.D.Tenn.2003); Rowe Entm't, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 429 (S.D.N.Y.2002). Following either approach, the Court must attempt to balance the likelihood that restored documents will prove relevant to the instant litigation with whether the cost of restoration places an undue burden on Defendant. RCFC 26(b)(2)(iii); see
Medtronic, 229 F.R.D. at 553; In re Amsted Indus., Inc., No. 01 C 2963, 2002 WL 31844956, at *2 (N.D.Ill.Dec.18, 2002). The estimated cost of $85,000 to $150,000 to restore the e-mails is small in comparison to the amount of the suit, which is over $30 million. Additional costs will also be incurred by Defendant, however, in sorting through the e-mails to identify those that are responsive to Plaintiff's discovery requests. Meanwhile, Plaintiff has provided no clear evidence to indicate that relevant documents are likely to be contained in the back-up tapes.