For TxDOT's thousands of active email accounts, the parties disagreed on the proper scope of the search for relevant emails. The Magistrate Judge resolved the issue by tailoring the search based on the possibility of finding relevant emails: with the exception of the accounts of the individual defendants and any TxDOT investigators who had investigated Kleppinger's employment complaints, the Magistrate Judge limited any global search[3] of TxDOT email accounts to a list of fifteen search terms. (Dkt. 165 at 7–8.)

For archived email accounts, the parties disagreed on whether the burden of accessing the archived emails—housed on TxDOT backup tapes—outweighed the possibility of finding relevant emails different from those already available from active email accounts. The Magistrate Judge resolved this issue by narrowing the scope of any production from the backup tapes, and held that if Kleppinger wanted to go forward with production, he would have to pay part or all of the costs. (Dkt. 165 at 12.)

On appeal to this Court, Kleppinger objects that both of these rulings are either clearly erroneous or contrary to law. (See Dkt. 170.) He also argues that the Magistrate Judge erred in failing to order the production of emails from Kleppinger's own TxDOT email account.[4] (Id. at 10.) For the reasons given below, the Court holds that the Memorandum and Order is neither clearly erroneous nor contrary to law. ACCORDINGLY, THE COURT AFFIRMS THE MAGISTRATE JUDGE'S MEMORANDUM AND ORDER.

When a party appeals a magistrate judge's non-dispositive order, the district court reviews the order for factual findings that are clearly erroneous and legal conclusions that are contrary to law. See Fed. R. Civ. P. 72(a); Smith v. Smith, 154 F.R.D. 661, 665 (N.D. Tex. 1994). The bar for overturning a factual finding is high: “more than just maybe or probably wrong,” the finding must strike the reviewing court “as wrong with the force of a five-week-old, unrefrigerated dead fish.” Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988). Legal conclusions are reviewed de novo. Smith, 154 F.R.D. at 665.

*2 Kleppinger first objects that the Magistrate Judge's ruling limiting Defendants' global search of “accessible ESI and e-mail”[5] to a list of specific search terms is contrary to law. (See Dkt. 170 at ¶ 25.) The Court disagrees.

Specifically, Kleppinger challenges the Magistrate Judge's factual finding on the burdensomeness of a more expansive search of “accessible” emails, and the legal basis for limiting the discovery of ESI through the use of search terms. (See Dkt. 165 at 5–10.) Although the scope of discovery is extensive, the trial court is given “broad discretion to tailor discovery narrowly.” Crawford–El v. Britton, 118 S.Ct. 1584, 1597 (1998). In fact, a court must limit discovery if it finds that “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Fed.R.Civ.P. 26(b)(2)(C)(iii).

Here, the Magistrate Judge found that the burden of production would outweigh the benefit of further discovery if Defendants were not permitted to use limiting search terms. (See Dkt. 165 at 7). There is nothing in the record that would make this determination clearly erroneous. The Magistrate Judge found, and Kleppinger does not dispute, that Defendants' would have to sift through tens of thousands of emails at great expense if the searches were not limited in scope. (Dkt. 165 at 7.) Moreover, other than Kleppinger's bare allegations, there is no evidence that a more expansive search would lead to additional relevant information. In sum, the record strongly suggests that an unrestricted global search would be nothing more than a costly fishing expedition.

Based on this finding of undue burden, the Magistrate Judge then fashioned specific rules for Defendants to follow when searching active email accounts, including more restrictive search terms[6] for email account holders without a direct connection to Kleppinger's claims. (Dkt. 165 at 7–8.) No case authority compels a contrary result. The cases cited by Kleppinger stand only for the general proposition that the scope of discovery is broad, but courts can and should limit excessively burdensome ESI production through search terms. See Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D.N.Y. 2006) (“Defined search strategies are even more appropriate in cases involving electronic data, where the number of documents may be exponentially greater.”).

Kleppinger argues next that the Magistrate Judge erred in failing to order Defendants to produce relevant emails from Kleppinger's own email account. (Dkt. 170 at 10.) However, Kleppinger's terse assertion utterly fails to identify any section of his initial Motion to Compel (Dkt. 70.) that might have gone unaddressed by the Magistrate Judge or any other specific request for production with which Defendants allegedly failed to comply.

*3 Even if the Court were so inclined, it finds Kleppinger's objection meritless since the Magistrate Judge already ruled on the subject of Kleppinger's communications within TxDOT, including emails, in his March 4, 2012 Order (Dkt. 122 at 27–29), and there is no allegation before the Court that Defendants failed to comply with this prior order.

Finally, Kleppinger argues that the Magistrate Judge's finding that ESI on TxDOT's backup tapes is “not reasonably accessible” is contrary to law. (See Dkt. 170 at 10); see also Fed. R. Civ. P. 26(b)(2)(B). Beyond the initial assertion, Kleppinger offers no facts or law to dispute the finding of inaccessibility. Instead, Kleppinger argues that Defendants' alleged misconduct regarding the preservation of discoverable material required the Magistrate Judge to compel discovery of the same information on TxDOT backup tapes. Since backup tapes no longer exist for at least some of the relevant time period, he also argues that the Magistrate Judge should have ordered sanctions against Defendants for “spoliation.” (See Dkt. 170 at 12, 14).

Regarding the accessibility of the information on the backup tapes, the Magistrate Judge found that “[t]here is nothing in the record to indicate that there is information that is unavailable from the live e-mail accounts and XML files that could be obtained through the backup tapes.” (Dkt. 165 at 13). Given the low probability of finding relevant emails on the backup tapes and the significant costs associated with accessing the information, the Magistrate Judge found that the emails on backup tapes are “not reasonably accessible” because of undue burden or cost under Federal Rule of Civil Procedure 26(b)(2)(B). See id. at 12. Reviewing the record and Rule 26(b)(2)(B), the Court finds nothing that would make this finding contrary to law.

Focusing instead on alleged misconduct by Defendants, Kleppinger appears to argue that Defendants' failure to comply with TxDOT's “Litigation Holds” (Dkt. 70–5) provides good cause to compel discovery of ESI from the backup tapes, despite the Magistrate Judge's finding that it was not reasonably accessible. (See Dkt. 170 at 11–12); seealso Fed. R. Civ. P. 26(b)(B).

Rule 26 provides very little guidance on discovery of ESI, and courts have used the ESI discovery principles published by the Sedona Conference as a guide in resolving ESI discovery disputes. See, e.g., Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 613 (S.D. Tex. 2010). Following a general proscription against unduly burdensome ESI requests, these principles indicate that backup tapes are a last resort over “active data and information.” The Sedona Conference, The Sedona Principles for Electronic Document Production (2nd Edition) ii (2007) (Principle 8). The requesting party must “demonstrate need and relevance that outweigh the costs and burdens of retrieving and processing the ESI” from backup tapes. Id.

Here, Defendants' alleged misconduct fails to demonstrate the need or relevance of such information. The Magistrate Judge held that compelling production from the backup tapes was unwarranted, regardless of whether Defendants fully complied with the Litigation Holds. (See Dkt. 165 at 14–15.) Any noncompliance did not result in the erasure of relevant ESI from more easily accessible sources of information, namely live email accounts and XML files. (See Dkt. 165 at 13.) Moreover, Kleppinger has failed to identify “any relevant e-mails that may exist only on backup tapes.” (Dkt. 165 at 14.) Even if relevant ESI once existed on the backup tapes, it is unclear that any backup tapes for the relevant time periods—from Kleppinger's hiring in October 2006 through his termination in February of 2011—still exist.[7]

*4 Since Kleppinger acknowledges that at least some of the backup tapes do not exist, he also argues that the failure to preserve relevant information on the backup tapes warrants sanctions against the Defendants. The issue of sanctions, however, is not properly before this Court. The Magistrate Judge ruled on Kleppinger's request for sanctions in his March 4th Order. (Dkt. 122 at 35.). Kleppinger waived any objection when he failed to timely object to that Order. See Fed. R. Civ. P. 72(a). If Kleppinger now has additional allegations that would provide the basis for sanctions, they must be brought before the Magistrate Judge first. See Rodriguez v. Pataki, 293 F. Supp. 2d 313, 315 (S.D.N.Y. 2003) (“The Court has referred all discovery disputes in this case to [the Magistrate Judge], and he is in the best position to review them in the first instance.”).

For the reasons given above, THE MAGISTRATE JUDGE'S MEMORANDUM AND ORDER OF AUGUST 23, 2012 (DKT. 165) IS AFFIRMED.

The Magistrate Judge's Memorandum and Order (Dkt. 165.) has an exhaustive history of the dispute over ESI.

Kleppinger uses the terms ESI and email imprecisely and seemingly interchangeably; nonetheless, Kleppinger's appeal is plainly focused on the production of emails rather than ESI more broadly. (See Dkt. 170.)

A global search would encompass all email accounts at TxDOT. (See Dkt. 165 at 8.)

Kleppinger no longer works at TxDOT, and thus, only TxDOT currently has access to Kleppinger's employee email account. (See Dkt. 170 at 10.)

Although Kleppinger uses the term “ESI” in his Response, the record indicates that the disputed issue—and the subject of the Memorandum and Order—relates to requests for emails and associated metadata, not other electronic files. “Accessible” in this context means the information is available from active data storage, such as a live employee email account. (See Dkt. 165 at 6.)

Kleppinger is allowed to choose the “fifteen limiting search terms,” subject to the Magistrate Judge's approval. (Dkt. 165 at 8.)

An affidavit from February 27, 2012 indicates that TxDOT email backup storage only goes back 400 days. (Dkt. 120–1 at 2.) At the time of the affidavit, email data went back only to February 2011, and TxDOT advised that even this data would soon be erased as part of the regular backup process. (Seeid.) If no backup tapes still contain relevant ESI, ordering their production would be pointless.