In this disability discrimination case, plaintiff Edward McCarthy moves for an order compelling defendants Philips Electronics North America Corp. (“PENAC”) and Koninklijke Electronics NV (“Royal Philips”) to comply fully with requests for production of documents by producing (1) complete copies of all e-mails for the period March 24, 2001 (when plaintiff became disabled) through May 28, 2003 (when his position was eliminated), and (2) the complete personnel files of the employees who allegedly replaced him, Inigo Franco and Rebecca Steffen. Plaintiff further requests an order permitting his agents to inspect the hard drives of personal computers used by his supervisors, Karen Jones and Ron Sabatini, the servers used by PENAC, and other back-up media to determine whether e-mails may be restored.

In support of the branch of his motion seeking to compel production of e-mails and to allow plaintiff access to defendants' computers, plaintiff submits an affidavit stating that e-mails were used routinely in the course of defendants' business for communication between the New York office where he primarily worked, and the International Product Line Manager in the Netherlands. Plaintiff also describes the process of daily back-up of the Lotus Notes system, as well as back up to the mainframe. Notably, he asserts that he was able to run a search on the Lotus Notes folders he maintained, resulting in production by him to defendants of 5,000 e-mails.

Defendants do not dispute that, if e-mail communications of the types requested by plaintiff were available and recoverable, they would be subject to discovery by plaintiff (see generally, Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 [S.D.N.Y. 2003]). However, they assert that they have produced all e-mails stored in employee in-boxes or mail folders, following their employees' search of their personal Lotus Notes in-boxes. PENAC's IT Manager avers that hack-up tapes are preserved for two to four weeks and then overwritten, and that “it is not possible” to recover or obtain e-mails deleted during the relevant period (response, Exhibit C). They object to plaintiff's request that his expert be given access to the system, citing concerns that data may be destroyed or altered, and that confidential and proprietary information could be disclosed.

Defendants' response provides little information concerning their policies regarding maintenance and deletion of electronic communications, aside from the routine overwriting of back-up tapes. The existence or nonexistence of procedures to preserve evidence relevant to anticipated litigation may be of special concern in this case, since documents produced by defendants provide a basis for finding that defendants anticipated litigation well before plaintiff brought suit in November of 2003, and even before he was notified of his job elimination on May 28, 2003. In an c-mail dated May 2, 2003, a PENAC human resources manager wrote to defendants Thomas Lloyd and Frank Klaasen that plaintiff may have received a copy of a performance evaluation which “contain [ed] discriminatory language I can't take back,” and they should “[b]e prepared for him to take action against us” (motion, exhibit B, e-mail dated May 2, 2003). It may be urged that, from that time on, defendants had a duty to preserve relevant evidence, which encompasses electronic data (see Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 [2d Cir. 2001], “The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation”; Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 [S.D.N.Y. 2003], “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents,” and retain back up tapes “storing the documents of ‘key players' to the existing or threatened litigation”; Standard Fire Ins. Co. v. Federal Pacific Elec. Co., 14 A.D.3d 213, 219 [1st Dept. 2004], sanctions maybe appropriate when party is prejudiced by adversary's destruction of evidence while “on notice the evidence might be needed for future litigation”).

As it is not disputed that e-mail communications responsive to plaintiff's discovery demands and relevant to his claims existed at some time, the only issue is whether plaintiff should be given an opportunity to attempt to recover such communications and/or to determine when the communications were destroyed. Defendants' broad claim that it is not possible to do so need not be accepted as dispositive, as courts have come to recognize that computer experts proclaim the ability to determine “if data has been altered and reconstruct the originally entered data” (Lipco Electrical Corp. v. ASG Consulting Corp., 4 Misc.3d 1019 [A], 2004 WL 1949062 [Sup. Ct., Nassau County, Austin J.]). Plaintiff has not raised the issue of cost-shifting. Defendants' concerns for confidentiality may be addressed through an appropriate stipulation, and their concern for protection of data should be addressed by those with technical expertise who may develop a protocol for the inspection. Accordingly, plaintiff may designate an IT expert to inspect the hard drives and back-up media identified in his discovery demands, and defendants are directed to provide access, subject to a protocol for the inspection and a confidentiality stipulation to be submitted for court approval within 20 days hereof.

As for plaintiff's request for personnel files, defendants state they have produced all relevant information from personnel files of the identified employees, and that only irrelevant, personal information has been withheld. Philips also has prepared a privilege log in support of redactions made to the e-mails it produced. The personnel files and unredacted e-mails shall be produced for in camera inspection at the next conference held in this matter,

Accordingly, plaintiff's motion is granted to the extent set forth above. The parties may address issues related to continuing discovery, including a protocol and time-table for proceeding with electronic discovery at a conference to be held in Part 35 (Room 543) on July 19, 2005, 3:00 p.m.

This decision constitutes the order of the court.

Dated: June 9, 2005

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Hon. Carol Edmead, J.S.C.