OVERLAP, INC., Plaintiff, v. ALLIANCE BERNSTEIN INVESTMENTS, INC., Defendant No. 07–0161–CV–W–ODS United States District Court, W.D. Missouri December 29, 2008 Counsel Patrick J. Stueve, Rachel Erin Schwartz, Stueve Siegel Hanson, LLP, Kansas City, MO, for Plaintiff. Gary A. Pierson, Jeffrey J. Kalinowski, Husch Blackwell Sanders, LLP, St. Louis, MO, Kirsten Anne Byrd, Husch, Blackwell, Sanders, LLP, Kansas City, MO, for Defendant. Smith, Ortrie D., United States District Judge ORDER REGARDING DISCOVERY *1 Plaintiff Overlap, Inc. seeks to compel Defendant Alliance Bernstein Investments, Inc. to produce specific electronically-stored information responsive to Plaintiff's document requests. The parties have participated in two telephone conferences pursuant to Local Rule 37.1(a)(2) and have submitted multiple letters to the Court on this issue. On December 11, 2008, counsel for Plaintiff and counsel for Defendant appeared before the Court in-person to further discuss these issues and the Court heard testimony from a representative from Defendant's information technology department, Mr. Wayne Dockery. Pursuant to Rule 26(b)(2)(B), Defendant had the burden of proving at this hearing that relevant information sought by Plaintiff is “not reasonably accessible because of undue burden or cost.” If Defendant sustained this burden, the Court could nevertheless order such discovery if Plaintiff “shows good cause.” Rule 26(b)(2)(B) also gives the Court discretion to specify any additional conditions for this discovery. The Advisory Committee Notes provide a non-exclusive list of conditions a court can impose. After consideration of the arguments of the parties as to whether documents are reasonably accessible and whether there is good cause, the Court hereby ORDERS the following: 1. C.AM.M. System At the hearing, Defendant provided testimony regarding the C.A.M.M. system utilized by Alliance. This systems appears only to contain e-mails, from 1997 to the present, of certain individuals at Alliance who are registered with FINRA (previously NASD). After hearing from Mr. Dockery regarding how C.A.M.M. backs-up information and what information is included in the C.A.M.M. system, Plaintiff was able to specifically narrow the e-mails (and any attachments to these e-mails maintained in C.A.M.M.) it seeks from the C.A.M.M. system. Based upon testimony presented to the Court as to how the C.A.M.M. system can be searched and the supplemental discovery responses provided by Defendant regarding which of its offices and employees used the Overlap software, Plaintiff asked that from 1997 through 2003, Defendant search the email accounts of the following individuals: 1. All wholesalers and any individuals who worked on any help desk (including but not limited to the inbound dealer marketing desk) in San Antonio, Texas; 2. All wholesalers and any individuals who worked on any help desk in Secaucus, New Jersey; and 3. All additional individuals listed in Defendant's Rule 26 Disclosures or in response to Plaintiff's Interrogatory 1 (15 additional people, many of whom likely fall into either Category 1 or 2 above). Plaintiff requested that these e-mails accounts be searched for the following three terms: 1. Overlap (with a capital “O”); 2. overlap (with a lower-case “o”); and 3. Kevin Fryer At the hearing, Defendant was willing to search the email accounts for approximately nine individuals, but not for all individuals requested by Plaintiff. *2 With regard to the C.A.M.M. system, the Court finds that Defendant has failed to sustain its burden of proving that the electronic documents on this system are not reasonably accessible. Mr. Dockery's testimony established that the electronic documents in C.A.M.M. can be searched, Defendant has the ability to perform these searches in-house, and that the actual human time (as opposed to the computer time) required to perform these searches is minimal. Defendant Alliance is ORDERED to produce all documents responsive to this search as requested by Plaintiff above no later than January 23, 2009. The Court further ORDERS that in light of the minimal burden involved, Defendant Alliance shall bear all costs associated with the search for and production of these responsive documents. 2. Backup Tapes Defendant also provided testimony regarding the backup tapes utilized by Alliance. After hearing Mr. Dockery's testimony regarding the specific types of backup systems utilized by Alliance and how information is backed-up on theses system, Plaintiff substantially narrowed the e-mails (including attachments) it seeks from these backup tapes. Based upon testimony presented to the Court as to how the backup tapes can be searched and the supplemental discovery responses provided by Defendant regarding which of its offices and employees used the Overlap software, Plaintiff asked that from 1997 through 2003, Defendant search the following backup tapes from: 1. Alliance's office in San Antonio, Texas; and 2. Alliance's office in Secaucus, New Jersey. Plaintiff offered that these searches could be further narrowed, depending upon the manner in which Defendant stores its backup information on these tapes, to the following email accounts: 1. All wholesalers and any individuals who worked on any help desk (including but not limited to the inbound dealer marketing desk) in San Antonio, Texas; 2. All wholesalers and any individuals who worked on any help desk in Secaucus, New Jersey; and 3. All additional individuals listed in Defendant's Rule 26 Disclosures or in response to Plaintiff's Interrogatory 1 (consisting of 15 people, many of whom likely fall into either Category 1 or 2 above). Plaintiff requested that these email accounts then be searched for the following three terms: 1. Overlap (with a capital “O”); 2. overlap (with a lower-case “o”); and 3. Kevin Fryer After reviewing the arguments and testimony from Defendant, the Court finds that the question of whether or not Defendant's backup tapes are reasonably accessible is a close call. The backup tapes at issue here are indexed and organized in a manner that would allow Defendant to substantially narrow the volume of data that would need to be restored. Once these e-mails are restored, these e-mails can easily be searched. The Court, however, need not decide the issue of whether these tapes are reasonably accessible because, as already discussed, Plaintiff has demonstrated “good cause” for why these backup tapes should be searched pursuant to the search terms listed above. In addition to the good cause already discussed, there is additional good cause for the search of these backup tapes in light of C.A.M.M.'s limitations, including the potential timeframe limitations and the limitations on the types of individuals whose e-mails are captured by the C.A.M.M. system. *3 Defendant Alliance is ORDERED to produce all e-mails (and attachments) responsive to the search as requested by Plaintiff above no later than February 9, 2009. The Court further ORDERS that Defendant Alliance shall initially bear all costs associated with the search for and production of these responsive documents. Of course, this expense qualifies as a component of the costs to be awarded to the prevailing party, so if Defendant prevails at trial it may recover these costs. 3. Supplemental Discovery Responses In addition to these e-discovery issues, an additional issue arose at the hearing on December 11, 2008. It now appears that Defendant has failed to provide all information responsive to Plaintiff's Interrogatories and responsive to the Court's October 8, 2008 Order compelling Defendant to supplement its previous discovery responses. The Court believes that the testimony at the hearing reveals a failure by Defendant to fully supply the information required by paragraph 4 of the October 8 Order; specifically: 1. identify by name, contact information and job title all individuals who purchased licenses, installed the software or established policies with respect to the use and installation of the software, and 2. information identifying the computers on which the software was installed and indicate who had access to and permission to use (which are not necessarily the same thing) the software. With respect to the information described in this paragraph, Defendant may elect to provide the information by setting forth categories describing the computers and individuals (e.g., all customer service representatives, people at the vice-president level and above, etc.). Defendant Alliance is ORDERED to further supplement its interrogatory responses to fully respond to these issues no later than January 16, 2009. 4. Scheduling Order Finally, because Defendant has until February 2, 2009 to complete the production of responsive electronic documents, the Court understands that certain scheduling order deadlines, specifically including the deadline for Plaintiff to disclose its expert and the completion of fact discovery, may need to be moved to allow Plaintiff the opportunity to review these new productions of documents. The parties are directed to submit a new proposed Scheduling Order to the Court no later than January 23, 2009. IT IS SO ORDERED. Footnotes  Although Defendant's expert testified at the hearing that the C .A.M.M. system contained e-mails back to 1997, counsel for Defendant indicated later at the hearing that C.A.M.M. may only reliably or completely contain e-mails back to 1999.  Even if Defendant had met its burden of proving that these documents are not reasonably accessible, Plaintiff has sustained its burden of proving “good cause” for Defendant to search for and produce any documents responsive to these limited search terms. Plaintiff has narrowly-tailored its document requests. The few e-mails already produced by Defendant confirm that Defendant used email to send Overlap reports. Furthermore, it appears that relevant documents may have existed, such as faxes of Overlap reports, that are no longer available or that Defendant has not produced in this litigation. Finally, the Court holds that documents regarding how Defendant used the Overlap software are important to the factual and legal issues in this litigation and specifically rejects Defendant's contention to the contrary. At a minimum, this information may be relevant to the issue of damages in the event Plaintiff prevails. Moreover, Defendant's usage of the software may be relevant to its understanding of the license—which is particularly important given the Court's previous holding that the license's meaning will have to be determined by a jury.