First, Defendant objects to the production of ESI to the extent that it requires Defendant to produce ESI that is not reasonably accessible, “as such production would cause an undue burden and cost on Defendant.” (Id. at ¶ 74). Defendant further states that it “is neither searching nor producing ESI stored in backup tapes.” (Id. (emphasis in original)).

Pursuant to Federal Rule of Civil Procedure 26, “[a] party need not provide discovery of [ESI] from sources that the party identifies as not reasonably accessible because of undue burden or cost.” FED. R. CIV. P. 26(b)(2)(B). The burden rests on “the party from whom discovery is sought [to] show that the information is not reasonably accessible because of undue burden or cost.” Id. Here, Defendant fails to provide any evidence in support of its argument that (1) ESI stored in backup tapes is not reasonably accessible and (2) that retrieval of that information would be overly burdensome.

As such, if ESI (including e-mails) exists that has not already been produced to Plaintiff, and Defendant believes that this additional ESI is not reasonably accessible, Defendant must file a declaration or affidavit with the Court setting forth detailed and specific evidence to support that conclusion. (Id. at 2:03:50); see, e.g., May v. FedEx Freight Se., Inc., 2009 WL 1605211, at *4 (M.D. La. June 8, 2009) (stating that the affidavit to support a finding that e-mails are not reasonably accessible should be derived from a representative of defendant's IT department and should “explain[ ] the process entailed in retrieving the requested emails from [defendant's] email systems and approximately how long it would take and how expensive such a process would be”).[1]

Second, Defendant “objects to the production of ESI in its native format and not as a printout document.” (See Dkt. No. 70, ¶ 74 (emphasis in original)). Specifically, Defendant argues that “retrieval of ESI in its native format is very expensive and time consuming and a computer contractor will need to be hired to perform this function from tapes of archived emails.” (See Dkt. No. 74, p. 5).

*2 In support of his argument that all ESI be produced in its “native format,” Plaintiff argues that this case deals with information (i.e., government documents, time sheets, reports, accounting, etc.) being “manipulated.” (February 3, 2012 Hearing at 3:39:35, 3:42:05). According to Plaintiff, testimony provided by Brenda Harper to Defendant's investigator establishes that Defendant was aware that this alleged manipulation of information was occurring prior to Plaintiff's employment. (Id. at 3:39:44, 3:43:40). Plaintiff argues that he “needs to look at metadata to show that what [Defendant is] showing [him] is not something [he] ever wrote.” (Id. at 3:40:17). However, Plaintiff cannot point to any specific documents that he suspects have been manipulated. (Id. at 3:44:15). Plaintiff asserts that he cannot be specific because Defendant was engaged in this behavior for a long period of time. (Id.).

At this point, there is not sufficient information for the Court to make a determination of whether all ESI should be produced in its native format with all associated metadata. Again, Defendant makes an “undue burden” argument, but fails to support this argument with evidence of the burden associated with providing the documents in their native format. Further, while Defendant produced documents in the form of Tagged Image File Format (“TIFF”) files, it is unclear whether the produced TIFF files constitute the original ESI itself, are electronic duplicates of files originally retained in some other file format (i.e., Microsoft Word, PDF, WordPerfect, etc.), or are simply electronic copies of hard-copy documents.[2] Moreover, the Court notes that ESI was likely originally retained in some other file format, and Defendant took an additional step to convert it to a TIFF file. Consequently, it is unclear why production of ESI in its native format would be unduly burdensome. Finally, it is unclear how any documents that may have been manipulated, including those that were created prior to Plaintiff's employment with Defendant, are relevant to Plaintiff's claims of discrimination and retaliation or how such documents would be likely to lead to the discovery of admissible evidence.

As such, the Court ORDERS that Defendant file an affidavit in support of its “undue burden” argument within ten days of issuance of this Order. The affidavit should specifically include (1) information to support a finding that information on backup tapes is not reasonably accessible and why it would be unduly burdensome to access such information, (2) why it would be unduly burdensome for Defendant to produce all ESI in its native format with all associated metadata, and (3) why it would be unduly burdensome for Defendant to produce ESI in its native format if it has already been converted and produced as a TIFF file. Defendant should bear in mind that the more information the Court has available to it regarding Defendant's computer systems, the location of the backup tapes, the information in the backup tapes, the retrieval process of information stored in backup tapes, whether documents that have already been produced as TIFF files are images of ESI and/or images of hard-copy documents, why the documents were produced as TIFF files rather than in native format, etc., the Court will be in a better position to make an informed and just decision.

*3 The Court further ORDERS that Plaintiff file briefing with the Court on why he believes all reasonably accessible ESI must be produced in its native format with all associated metadata. Specifically, Plaintiff should address what information he anticipates to find in the metadata and how such information is relevant to his claims or likely to lead to the discovery of admissible evidence. Moreover, in the interests of efficiency and expediency, the Court recommends that Plaintiff identify specific documents that he believes were manipulated. Plaintiff should also identify specific documents that he believes (1) include metadata that is relevant to his claims for other reasons, or (2) include metadata that is likely to lead to the discovery of admissible evidence. Plaintiff's briefing is due ten days after the filing of Defendant's affidavit.

IT IS SO ORDERED.

At the hearing, and in its response, Defendant requested that the Court allocate some of the costs for searching the ESI that is not reasonably accessible to Plaintiff. (February 3, 2012 Hearing at 2:04:40; see Dkt. No. 74, p. 5). In response, the Court advised Defendant that it was not yet ordering Defendant to search the information Defendant has stated is not reasonably accessible. (February 3, 2012 Hearing 2:04:40). Rather, the Court will withhold a specific ruling on that issue until after Defendant files its affidavit.

Notably, this information is important to the Court's determination of whether production of all ESI in its native format will be unduly burdensome. For example, if the vast majority of documents produced by Defendant as TIFF files are actually electronic copies of hard-copy documents, and not ESI, the volume of ESI is reduced and Defendant's undue burden argument is significantly weakened. In contrast, if the vast majority of documents produced by Defendant as TIFF files are electronic duplicates of files originally retained in some other file format, and thus ESI, the volume of ESI may be considerable and Defendant's undue burden argument is strengthened.