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.
End of Document.