No. 06–CV–172 (DGT)(RER)
United States District Court, E.D. New York
September 26, 2007
Denise K. Bonnaig, Mahima Joishy, Bonnaig & Associates, New York, NY, for Plaintiff.
Artemis Lekakis, United States Attorneys Office, Brooklyn, NY, for Defendant.
MEMORANDUM & ORDER
*1 By a letter motion dated March 20, 2007, Plaintiff Charlotte Wiley (“plaintiff” or “Wiley”) seeks to compel defendant Henry M. Paulson, Jr. (“defendant”), Secretary of the Internal Revenue Service (“IRS”), to produce metadata for certain emails and attached documents. Following a motion hearing held on April 4, 2007, the Court required that both parties submit further briefings in light of Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y.2003). Docket Entry 66 at 34–35. The issues briefed by both parties are (I) the metadata's relevance to plaintiffs claims and (2) whether plaintiff should bear the cost for such production. Subject to the conditions set forth below, Wiley's motion to compel the production of metadata is denied without prejudice.
Defendant has already produced hard copies of all relevant emails, which include among other things author, recipient and transmittal date information. See Docket Entry 62 at 3. Plaintiff now seeks the production of metadata from these and other emails and attached documents. Metadata is “data about the data” and potentially reveals such information as the emails' complete transmission paths and dates of creation, modification and access. (Pl.'s Letter Memo. at 3.) Plaintiff argues that this information is relevant to her claim because it would help show that her termination was in retaliation for certain Equal Employment Opportunity complain^!^. (Id.
at 4.) In particular, plaintiff contends that the metadata would prove that her termination involved her direct supervisors because it might show that relevant emails were drafted by her supervisors and/or routed through their computers. (Id.
Defendant responds that the metadata is irrelevant because defendant has already produced hard copies of the emails.
(Mem. of Law in Opp'n to Pl.'s Mot. to Compel Production of Metadata at 5 .) More persuasive, however, is the deposition of Scott Phelps (“Phelps”), who is an Enterprise Level Administrator with the IRS. (Decl. of Scott Phelps in Opp'n.) Phelps declared that any potential IRS email metadata would not include information relating to revisions or “blind carbon copy” recipients. (Id.
77 42, 44–46.) Phelps also stated that releasing the internet names and IP addresses attached to the IRS mailboxes included in email metadata would raise the specter of compromising taxpayer information. (Id .
As for plaintiffs motion to compel, Phelps claimed that it would be “extraordinarily difficult, if not impossible” to retrieve the metadata from the 1RS's archives because the IRS deletes and reuses its backup email system every sixty days. (Id.
fl74–79.) Furthermore, the email accounts used by plaintiff and all but one of her former supervisors have been deleted per the IRS's email retention policy for former employees. (Id.
fl80–87.) Even assuming that these emails still somehow existed, Phelps stated that the IRS would need to purchase software and employ a technician to operate a search at an estimated cost of $175,000.
*2 Phelps claims that the burden of retrieving Microsoft Word files would also be substantial. The IRS erases the memory on computers and hard drives after employees have left the IRS. (Id.
1112.) As noted, it appears that all but one of plaintiffs supervisors are no longer working for the IRS. While the IRS does not utilize a deletion protocol for Microsoft Word files on its servers and databases! Phelps estimates that given the size of such servers that it would cost $1.86 million to purchase and run software to search the IRS's database for any relevant files.
Parties may obtain discovery of any relevant material that “appears reasonably calculated to lead to the discovery of admissible evidence.” FED. R. CIV.P. 26(b)(1). A party may therefore request another party to “produce and permit the party making the request ... to inspect, copy, test, or sample any ... electronically stored information.” FED. R. CIV. P. 34(a). Such requests for electronic: information are, however, limited:
A party need not provide discovery of electronically stored information from sources that the party identities as not reasonably accessible because of under burden or cost. On motion to compel discovery ..., the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(c). The court may specify conditions for the discovery.
FED. R. CIV. P.26(b)(2)(B). Among the factors to consider in determining good cause, the party seeking discovery bears “the burden of showing that its need for the discovery outweighs the burdens and costs of locating, retrieving, and producing the information.” FED. R. CIV. P. 26(b)(2) advisory committee note (2006)
As to the production of metadata from the IRS's servers, defendant has met his burden of showing an undue burden and cost. Phelps's declaration provides credible evidence that the sought-after information is no longer on the IRS's servers and that, even if it did still exist, the burden and cost of retrieval would be substantial and prohibitive.
At the present stage of discovery, plaintiff has not shown good cause to compel the production of ‘the requested metadata. Plaintiffs theory is still highly speculative and is outweighed by the cost and burden of production. Plaintiff may, however, still show good cause by proving an actual need to conduct a search of the IRS's servers. For instance, this need could be shown by providing credible evidence—including through depositions of plaintiffs former supervisors—that the relevant emails and Word documents were in fact routed through the supervisors' computers. Should plaintiff make such a showing, than the Zarbulake cost-shifting analysis is appropriate. The Zubulake factors are not be applied mechanically given their purpose of weighing any undue burden or expense to the responding party. Zubulake, 217 F.R.D. at 323. Under the first factor, plaintiffs request is not “specifically tailored to discover relevant information.” Id. at 324. Plaintiffs request spans two years of documents from a large and unidentified group of individuals. Similarly, defendant prevails under the third, fourth and fifth Zubulake factors in that he has demonstrated a high cost of production. The Court also notes that there may be an added cost of ensuring that taxpayer and IP information remains confidential.
*3 Under the second factor, plaintiff has shown that the metadata she seeks is not available from other sources, including from the already produced email hard copies. However, the sixth and seventh factors, which relate to the relevance and importance of the metadata sought, tip in defendant's favor, even if plaintiff were to make a showing that the information she seeks actually exists. The relevance and importance of plaintiffs request is of low value because the metadata would only contain transmission path information and nothing relating to revision history or blind carbon copy recipients. At this point, the Court remains to be convinced that the requested metadata would or even could reveal evidence of an electronic trail emanating from plaintiffs supervisors. Therefore, should plaintiff succeed in showing good cause as described above, she would bear the cost of defendant's production of metadata.
For the reasons stated above, plaintiffs motion to compel the production of metadata is denied without prejudice to a showing in the future that there is a factual basis for plaintiffs demand. Should plaintiff make such a showing, she would bear the cost of production. The parties are ordered lo submit a joint status report and revised case management plan by 10/10/2007. All discovery should be completed within four months of this order
Defendant also claims that plaintiff has not produced three boxes of documents that were allegedly taken by plaintiff after her termination. (Mem. of Law in Opp'n to Pl.'s Mot. to Compel Production of Metadata at 3, 6.) This issue is wholly immaterial to plaintiffs motion to compel the production of metadata. It is impossible that plaintiff would already have the soughtafter metadata in her possession, whether via the three boxes of documents or otherwise. As the Court explained at its April 4, 2007 conference, defendant is free to pursue the normal channels of discovery for any relevant evidence that he seeks from plaintiff. This includes taking plaintiffs deposition and having plaintiff execute an affidavit certifying that she does not possess any relevant documents. See Docket Entry 66 at 8–10.
Plaintiff also provided an expert's sworn affidavit. (Decl. of Daniel Kalai.) Unfortunately, plaintiffs expert was unable to gain knowledge of the 1RS's data storage practices and thus incorrectly based his estimate on the 1RS having “live” backup of the relevant data. (Id.
The Court notes that this quote may not be completely accurate given that it was based on an extrapolation of the estimated number of files that the IRS would have to search. (See Decl. of Scott Phelps in Opp'n 77 I1 8–24.) Phelps also did not seek an institutional or high-volume discount, nor did he seek quotes from more than one software company. Should such a search be warranted pursuant to this order, than the IRS would be required to reasonably mitigate costs.
The Court notes that on May 15, 2006, plaintiff sent a letter requesting that defendant preserve all electronic data relating to this case. (Pl.'s Letter Memo. at 19–23.) Any evidence that the IRS deleted relevant data after this date would mitigate the cost of production because defendant was under a greater duty to see that the data was preserved.
End of Document.