*1 Administrative Law Judge Order IN THE MATTER OF CERTAIN NETWORK INTERFACE CARDS AND ACCESS POINTS FOR USE IN DIRECT SEQUENCE SPREAD SPECTRUM WIRELESS LOCAL AREA NETWORKS AND PRODUCTS CONTAINING SAME USITC Inv. No. 337-TA-455 United States International Trade Commission (U.S.I.T.C.) October 12, 2001 Terrill, Jr., Delbert R., Administrative Law Judge ORDER NO. 45: ORDER GRANTING MOTION TO COMPEL RESPONSIVE EMAIL On September 27, 2001, RESPONDENTS, D-Link Systems, Inc. and D-Link Corporation (collectively “D-Link”), moved [455-49] to compel COMPLAINANT, Proxim, Inc. (“Proxim”), to produce electronic mail, i.e. e-mail, responsive to D-Link's document requests. On October 4, 2001, Proxim opposed D-Link's motion to compel. D-Link has requested Proxim to produce responsive information from Proxim's backup tapes of its e-mail communications. D-Link maintains that the e-mail Proxim has thus far produced is deficient. In particular, D-Link alleges that Proxim has failed to produce e-mail files of several individuals identified as having information relevant investigation. D-Link argues that Proxim's backup tapes likely contain most if not all of these e-mail files. Proxim alleges that it has produced all responsive e-mail readily available and argues that the e-mail on the backup tapes is either duplicative of already produced e-mail or is non-responsive. Proxim, however, admits that “[w]hile Proxim knows the time frame for what is on [the backup] tapes, it does not know what information is contained on them.” Under Commission rules, e-mail is discoverable. See 19 C.F.R. § 210.30(a)(1) (stating that a party may request documents including data compilations from which information can be obtained). The undersigned finds that the requested e-mail is “reasonably calculated to lead to the discovery of admissible evidence.” 19 C.F.R. § 210.27(b). Thus, responsive e-mail on Proxim's backup tapes from 1998 until the present must be produced1. Proxim has not categorically refused to produce its backup e-mail tapes to D-Link. The parties disagree, however, as to which party should bear the cost D-Link argues that the burden should fall on Proxim as the producing party because Proxim “chose” to store its e-mail communications on backup tapes. See In re Brand Name Prescription Drugs Antitrust Litigation, 1995 U.S. Dist. LEXIS 8281 (N.D. Ill. 1995); Linnen v. A.H. Robins Co., Inc., 1999 WL 46201, *6 (Mass. Sup. Ct. 1999). D-Link argues that the costliness of the discovery procedure that needs to be employed in this situation is a product of Proxim's record keeping scheme over which D-Link has no control. Id. at *6. Proxim argues that D-Link should share the costs involved in producing responsive e-mail from the backup tapes. The undersigned concludes that a cost-sharing mechanism in this particular situation to produce responsive e-mail from Proxim's backup tapes is appropriate. See Sattar v. Motorola, 138 F.3d 1164, 1171 (upholding district court order that parties each should bear half the cost of copying e-mail from tapes). Proxim should not be penalized for using backup tapes to store e-mail communications because assuming that producing backup tapes is the cost of doing business in the computer age assumes a reasonable alternative to backup tapes. See McPeek v. Ashcroft, 202 F.R.D. 31, 33 (D.D.C. 2001). Also, imposing such a burden on the producing party creates a disincentive for the requesting party to demand anything but all the tapes. Id. at 33. However, D-Link, as the requesting party, should not have to bear the costs of searching the backup files for responsive e-mail just as D-Link would not have to pay for such a search in a traditional “paper” case. Id. at 34. Thus, the undersigned concludes that given the particular facts of this investigation, the parties should share the cost of producing the requested information. *2 Proxim notes that there are two alternatives to search the backup tapes for relevant information. One alternative is to create a searchable database and the other alternative is to print out the entire backup tapes and search page by page for responsive, non-privileged e-mail. If this were a traditional ““paper” situation, Proxim would bear the burden of searching the hard copies for responsive e-mail and then make the responsive e-mail reasonably available to D-Link for D-Link to copy. Thus, the undersigned finds that in this computer age “e-mail” situation, Proxim should bear the burden of creating a searchable database and finding responsive e-mail. Proxim can then make those e-mail, whether it be in tape or paper form, reasonably available for D-Link to copy or retrieve. In the alternative, the parties can propose another cost-sharing mechanism keeping in mind that the undersigned concludes that the parties must share the costs of producing the requested e-mail. Accordingly, D-Link motion to compel Proxim to produce responsive e-mail is granted. SO ORDERED. Footnotes [1] The undersigned finds unlikely that the pre-1995 backup tapes contain relevant e-mail because Proxim did not utilize e-mail until sometime in 1994. USITC Inv. No. 337-TA-455 (U.S.Intern.Trade Com'n), USITC Order No. 45, 2001 WL 1217233