Zainey, Jay C., United States District Judge
Trial court upheld Magistrate Judge’s ruling denying plaintiff’s motion to compel discovery of an .nsf file (Lotus Notes email file) and other mail files from backup tapes because production would have been cumulative and unduly burdensome, respectively.
Plaintiff brought claims against defendant alleging that defendant distributed plaintiff’s electronic newsletter that he received as part of a paid individual subscription to various employees in violation of its copyright. Initially, defendant forwarded plaintiff’s newsletter to various employees. Later, he had the newsletter delivered to a shared email account, and provided the password to all of his employees to have access to the newsletter.
Plaintiff wanted production of the .nsf file to retrieve the unread marks table, which would show which employees accessed certain issues of the newsletter. Defendants argued that the production of this file would be cumulative because it had already produced user activity reports that showed the names of employees, dates on which they accessed the .nsf file, and the number of issues accessed each day. The court found that the request was cumulative and thus there was no abuse of discretion.
Plaintiff also sought mail files of 29 employees from 1999 to 2006 from backup tapes. Plaintiff argued this information was not cumulative because defendant had only produced mail files dating back to 2006 and that production would not be unduly burdensome because the cost was justified by the mail files’ importance to the litigation. The estimated cost of production would be $47,000. The court disagreed, holding that the request was unduly burdensome in light of the extensive discovery already taken place.
v.
CANAL BARGE COMPANY, INC
Counsel
Robert L. Powley, James Martin Gibson, Michelle Katherine Riley, Stephen M. Ankrom, Powley & Gibson, P.C., New York, NY, Christophe B. Szapary, Provosty & Gankendorff, LLC, New Orleans, LA, for Energy Intelligence Group, Inc., et al.Mark Aaron Cunningham, Adrienne L. Ellis, Michael William Magner, Jones Walker, New Orleans, LA, Michelle Katherine Riley, Powley & Gibson, P.C., New York, NY, for Canal Barge Company, Inc.