Eddie Kleppinger, Jr., Plaintiff, v. Texas Department of Transportation, et al., Defendants CIVIL ACTION NO. L–10–124 Signed August 23, 2012 Counsel Eddie Kleppinger, Jr., Laredo, TX, pro se Walter Clyde Brocato, Mary Sanchez, Office of the Attorney General State of Texas, Austin, TX, for Defendant. Hacker, J. Scott, United States Magistrate Judge MEMORANDUM AND ORDER *1 Pending before the Court is “Plaintiff Eddie Kleppinger, Jr.'s Opposed Motion to Compel Discovery and Request for Sanctions and Brief' (Dkt. No. 70, ¶ 73). In this motion, Plaintiff requests production of electronically stored information (“ESI”) from Defendant Texas Department of Transportation (“TxDOT”).[1] The Court held various hearings and conferences on this matter on February 3, 2012, April 12, 2012, and April 25, 2012. For the reasons set forth below, Plaintiff's motion is GRANTED IN PART AND DENIED IN PART. I. BACKGROUND In Plaintiff's request for production, Plaintiff requested that Defendant TxDOT produce documents created electronically in native format “without redaction of metadata.”[2] (See Dkt. No. 70, ¶ 73). In response, Defendant TxDOT objected to the production of ESI to the extent it requires Defendant TxDOT to produce ESI that is not reasonably accessible, “as such production would cause an undue burden and cost on Defendant.” (Id. at ¶ 74). Specifically, Defendant TxDOT objected to production of e-mails stored on backup tapes, arguing 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 e-mails.” (See Dkt. No. 74, p. 5). Defendant further objects to “production of ESI in its native format and not as a printout document.” (See Dkt. No. 70, ¶ 74). Currently, Defendant has produced some ESI as TIFF (Tagged Image File Format) files or hardcopy printouts. However, Plaintiff objects to these formats as being nonsearchable. (Id. at ¶ 76). On February 15, 2012, the Court issued an Order asking Defendant TxDOT to file an affidavit in support of its “undue burden” argument. (See Dkt. No. 105). The Court required TxDOT to set out (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 TxDOT 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. (Id. at p. 3). On February 27, 2012, in support of its “undue burden” argument, Defendant TxDOT submitted an affidavit from Mr. Kevin Wagner (“Mr. Wagner”), Manager of the Server and Infrastructure Services Branch for the IT Operations Division of TxDOT. (See Dkt. No. 120). Mr. Wagner stated that Defendant TxDOT's e-mails are stored in live e-mail accounts, preserved as XML files, or archived on backup tapes. (Id. at Ex. A, ¶ 5). Mr. Wagner further stated that, depending on the number of dates from which the data is asked to be recovered, data recovery from backup tapes could take up to two months and in some instances could take longer. (Id. at Ex. A, ¶ 10). Mr. Wagner also ran a search utilizing the term “Kleppinger” in each of the individual Defendant's live e-mail accounts or XML files, locating approximately 2,800 emails.[3] Notably, Defendant TxDOT did not explain why it would be unduly burdensome to produce ESI in native format. *2 On March 4, 2012, the Court ordered Defendant TxDOT to produce “any readily accessible ESI including, but not limited to e-mails, that are relevant to this lawsuit or that are reasonably calculated to lead to the discovery of admissible evidence.” (See Dkt. No. 122, p. 29). Additionally, the Court ordered the parties to confer on reasonable search terms for Defendant TxDOT to utilize in its search for ESI. (Id. at pp. 29, 35). On March 13, 2012, each party informed the Court that they had agreed on approximately thirty search terms, but disagreed on several others. (See Dkt. Nos. 129–130). Specifically, Plaintiff believed that all results obtained from the search term “Kleppinger” were possibly relevant, and thus, limiting these results with additional search terms was unnecessary. (See Dkt. No. 129, ¶ 10; April 12, 2012 Motions Hearing at 11:09:37). Defendant TxDOT objected to Plaintiff's proposal to search for the terms “Ed”, “Eddie”, “e-mail”, “email”, and “Laredo” in combination with other search terms. (See Dkt. No. 130, p. 1). In essence, both parties argued over e-mail search terms and did not raise issues relating to a search for other ESI. At the April 12th hearing, the Court, again, ordered the parties to confer on electronic search terms. (April 12, 2012 Motions Hearing at 11:33:40). The Court also asked Mr. Wagner to consult with TxDOT's contractor regarding the specific amount of time and money it would take to recover and search for five days' worth of data on backup tapes for two or three individual Defendants. (Id. at 10:57:00). On April 25, 2012, Defendant TxDOT filed its advisory to the Court along with Mr. Wagner's second affidavit describing the burden and expense of restoring backup tapes. (See Dkt. No. 153). Therein, Defendant TxDOT stated that the parties were able to agree on twenty-two terms to search in combination with the terms “Ed” and “Eddie”. (Id. at p. 1). On that same day, the Court held a hearing where the parties answered the Court's remaining questions concerning ESI discovery. Notably, at the April 25th hearing, Mr. Wagner stated that the e-mail accounts on backup tapes could not be searched globally. (April 25, 2012 Status Conference at 1:44:15). Thus, if backup tapes were restored and then searched, each e-mail account would have to be searched separately. Also, at that hearing, Plaintiff clarified that he was interested in metadata for all relevant e-mails and “all versions of the investigation reports and for any disciplinary actions and forms.” (Id. at 1:41:00). Shortly thereafter, on April 27, 2012, Plaintiff filed a response to Defendant TxDOT's advisory. (See Dkt. No. 154). In that filing, Plaintiff clarified that he believes the proper scope for searching e-mails for discovery purposes is all TxDOT e-mail accounts.[4] (Id. at p. 3). Of significance, the Court recognizes that Defendant TxDOT contends that the scope should be limited to only the e-mail accounts of the ten individual Defendants. (See Dkt. No. 153, pp. 2–3). II. THE PRODUCTION OF ESI A. Legal Standard Regarding the Production of ESI *3 Federal Rule of Civil Procedure 26 provides specific limitations on ESI, stating that “[a] party need not provide discovery of electronically stored information 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 is on the party opposing a motion to compel discovery to establish “that the information is not reasonably accessible because of undue burden or cost.” Id. “Whether production of documents is unduly burdensome or expensive turns primarily on whether it is kept in accessible or inaccessible format (a distinction that corresponds closely to the expense of production).” Sundown Energy, L.P. v. Haller, No. 10–4354, 2011 WL 5079329, at *4 (E.D. La. Oct. 26, 2011) (quoting Zubulake v. UBS Warburg, L.L.C., 217 F.R.D. 309, 318 (S.D.N.Y. May 3, 2003)). For electronic data, this “turns largely on the media on which it is stored.” Id. “Machine-readable data, such as active, online, near-line, or offline data in storage or archives are accessible, however, backup tapes and erased, fragmented, or damaged data is not accessible.” Canon U.S.A., Inc. v. S.A.M., Inc., No. 07–01201, 2008 WL 2522087, at *3 (E.D. La. June 20, 2008) (citing Zubulake, 217 F.R.D. at 319–20) (emphasis added). If the responding party shows that a source of ESI is not reasonably accessible, the requesting party may still obtain discovery by showing “good cause, considering the limitations of Rule 26(b)(2)(C).” Id. The standards of Rule 26(b)(2)(C) bestow on a court the authority to limit discovery if it is: (1) unreasonably cumulative or duplicative or can be obtained from some other source that is more convenient, less burdensome or less expensive; (2) the person seeking the discovery has had ample opportunity already to obtain the information sought; or (3) the burden or expense of taking the discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)(C). B. Production of ESI from Live E-mail Accounts and XML Files Here, Mr. Wagner concedes that e-mails available on live accounts and XML files are easily accessible. (See Dkt. No. 120, Ex. A, ¶¶ 7–8). In its March 4th Order, the Court ordered Defendant TxDOT to produce any readily accessible ESI relevant to this lawsuit. (See Dkt. No. 122, p. 29). Accordingly, Defendant TxDOT must produce responsive, non-privileged e-mails from live accounts and XML files. See Canon U.S.A., Inc., 2008 WL 2522087 at *5 (court found defendant should bear cost for producing information since ESI was accessible). However, the parties disagree on the scope of e-mail accounts that should be searched and on the search terms that should be utilized in searching the ESI. On one hand, the undersigned understands that TxDOT's position is that it should only have to search the e-mail accounts of the ten individual Defendants (Dkt. No. 53, pp. 2–3) and that the search terms “Kleppinger”, “Ed”, and “Eddie” should be used with other search terms to limit the number of responsive e-mails.[5] (Id.; Dkt. No. 130, pp. 1–2). On the other hand, the magistrate judge understands that Plaintiff wants every e-mail account searched within TxDOT (Dkt. No. 154, ¶¶ 7–8), and that the search term “Kleppinger” should not be used with other limiting terms. (See Dkt. No. 129, ¶ 10). The Court believes that both of these positions are problematic. Notably, Defendant TxDOT has represented to Plaintiff that it found 30,000 e-mails with the term “Kleppinger” through what appears to have been a global search of all live e-mail accounts at TxDOT. (See Dkt. No. 129, ¶ 10; Dkt. No. 154 ¶ 7). Here, the Court believes that requiring TxDOT to review 30,000 e-mails for relevant, non-privileged responsive e-mails would be difficult and unreasonable. Likewise, the undersigned thinks it is equally unreasonable to allow TxDOT to only search the e-mails of the ten individual Defendants. This proposed scope of inquiry would be too limited of a search for relevant e-mails. *4 It seems intuitive to the Court that there are TxDOT employees other than the individual Defendants that could have relevant e-mails. Plaintiff had other co-workers, besides the individual Defendants, within the Travel Services Division. There were other personnel within the TxDOT's Office of Civil Rights that had interactions with Plaintiff regarding his underlying Equal Employment Opportunity Commission complaints who are not individual Defendants in this matter.[6] Further, regarding any supervisors or any higher-level executives who are individual Defendants, it is conceivable that their support staff could have received relevant emails. In fact, the Court notes that a page of metadata previously provided by Mr. Wagner indicates that Defendant George Ebert sent an e-mail with the subject title “FORWARD–FOLLOW up Info Fwd: Investigation—E. Kleppinger” to a “Debbie Moore” within TxDOT. (Dkt. No. 120, Ex. A, Ex. 1). Moreover, that e-mail was copied to a “Kathy Harrison,” a Tammy Calderon,” and a “Peter Garcia” within TxDOT. (Id.). In sum, it is almost a certainty that other TxDOT employees will have e-mails relevant to this case. As such, the Court will structure TxDOT's search of its e-mail accounts as follows. First, TxDOT must conduct a search of its live e-mail accounts and/or XML files of Defendants Leonel Garza, Marco Salgado, Brenda Harper, and Doris Howdeshell, utilizing the search term “Kleppinger,” with no other limiting terms.[7] Further, since these four Defendants worked within the same office or division as Plaintiff, it is possible that e-mails generated by these Defendants referred to Plaintiff by his first name—either Ed or Eddie. Consequently, TxDOT should also utilize a search to obtain any emails (from these four Defendants) pertaining to “Ed” or “Eddie.”[8] Second, TxDOT must search the live email accounts for Defendants Yolanda Arriaga, George Ebert, Edward Serna, and Amadeo Saenz also using the search term “Kleppinger” without any limitation. Third, TxDOT should search the e-mail account of any TxDOT investigator who worked on Plaintiff's complaints handled by TxDOT's civil rights department with the search term “Kleppinger” without any limitation. Finally, TxDOT must globally search its other live email accounts utilizing the search term “Kleppinger” in conjunction with other limiting search terms.[9] More specifically, Plaintiff will be allowed to choose fifteen limiting search terms, subject to the Court's approval, that will be used with his last name for the related global searches. Of significance, the Court will not approve a search for “Kleppinger” and “Laredo”, or “Kleppinger” and “e-mail” since these combinations would not be narrowly tailored to find only information that is relevant to the case. Although the ordered searches will likely require Defendant TxDOT to review thousands of e-mails, any risk of overproduction does not outweigh the benefit of finding potentially relevant e-mails that cannot be obtained otherwise. See Tran v. Sonic Ind. Servs., No. CIV–10–69–C, 2010 WL 5376348, 2010 U.S. Dist. LEXIS 135135, at *7–8 (W.D. Okla. Dec. 21, 2010) (in Title VII case where plaintiff alleged race, national origin and gender discrimination, court ordered defendant to produce e-mails likely to contain relevant information regarding plaintiff's claim even though production may result in vast amount of production numbering in tens of thousands of emails). Furthermore, many of these e-mails may be relevant since Plaintiff has alleged numerous facts against Defendants relating to Plaintiff's assignments, including budgets, contracts, purchasing, and customer matters. Therefore, as noted by the Court at the April 12th hearing, counsel should be prudent in making any determination on whether e-mails contain relevant information. (April 12, 2012 Motions Hearing at 11:20:00). C. Production of ESI in the Form of E-mails from TxDOT's Backup Tapes 1) The ESI on Defendant TxDOT's Backup Tapes is Not Reasonably Accessible. *5 Mr. Wagner represents that recovering e-mails stored on backup tapes for six of the individual Defendants[10]would require a significant amount of time and involve assistance from a third-party backup system manager. (See Dkt. No. 153, Ex. A). According to IBM (Team for Texas), TxDOT's former backup system manager, there are 490 backup tapes that maintain a full year of TxDOT's backup data.[11] (Id. at Ex. A, ¶ 3). On average, one day of data spans seven backup tapes. (Id.). To recover any data, the entire “post office” where an employee's e-mail account is located must be recovered. (See Dkt. No. 120, Ex. A, ¶ 10). Thus, “data for a single user cannot be recovered by itself.” (See Dkt. No. 149, p. 3). For illustrative purposes, Mr. Wagner requested that IBM,[12] provide an estimate of how long it would take to recover data from backup tapes for five days for Defendants George Ebert, Brenda Harper, and Marco Salgado. (Id. at ¶ 4). IBM informed Mr. Wagner that data on these five dates for the three Defendants is written across 24 tapes and would require 72 hours to recover.[13] (Id.). Further complicating matters is that, after April 30, 2012, Defendant TxDOT replaced its backup system manager with ACS. (Id. at p. 3; April 12, 2012 Motions Hearing at 10:50:38). Consequently, in order for a restore to be done in a timely manner, TxDOT would have to request ACS, not IBM, to restore data from backup tapes. (See Dkt. No. 153, Ex. A, ¶ 4). ACS charges $48.43 per hour for an expedited restore. (Id.). Assuming ACS can perform a restore in the same amount of time as estimated by IBM, an expedited restore for 72 hours would cost $3,486.96. (Id.). An expedited restore for a year's worth of e-mail data for the six individual Defendants with e-mails on backup tapes would take approximately 1,925 hours and cost $93,227.75. (Id.). Plaintiff points out that, under TxDOT's contract with IBM, IBM would have recovered data from backup tapes at no charge to TxDOT before IBM's contract termination date of April 30, 2012. (See Dkt. No. 154, ¶ 10). Consequently, Plaintiff argues that had TxDOT made a timely request to IBM to restore e-mails from backup tapes, TxDOT could have avoided the costs now cited by ACS. (Id.). Here, Plaintiff fails to consider the expense IBM, a non-party, would presumably incur in providing this service. “[N]on-parties in particular are entitled to protection from undue burden and expense.” See Auto Club Family Ins. Co. v. Ahner, No. 05–5723, 2007 WL 2480322, at *6 (E.D. La. Aug. 29, 2007). Further, even if TxDOT did not have to pay IBM to recover backup tapes, it would still have the burden of accessing, searching, extracting, and reviewing the e-mails. *6 For TxDOT to produce ESI from backup tapes, it must access each e-mail account, conduct a search for e-mails, and extract the e-mails. (See Dkt. No. 153, Ex. A, ¶ 4). Mr. Wagner states it would take Defendant TxDOT's employees over 104 hours and cost $4,680.00 to access the e-mail accounts of the three individual Defendants, and to search and extract emails from five different dates.[14] (Id.). Therefore, extrapolating from these figures, TxDOT's total cost to search and extract a year's worth of data for the six individual Defendants with emails on backup tape would be approximately $126,000.00.[15] (Id.). “The indirect cost will be the impact to TxDOT projects and regular assigned work that TxDOT personnel are required to perform.” (Id.). Furthermore, counsel for Defendant TxDOT will need to print and review each e-mail for privileged information and to determine whether it is responsive to Plaintiff's discovery requests. (Id.). The Court believes the burden on TxDOT to perform these tasks for approximately 10,000 e-mail accounts on backup tapes would outweigh the speculative benefit of discovering potentially relevant e-mails. In summary, a complete recovery and search of a year's worth of e-mails on backup tapes for the six individual Defendants would cost approximately $220,000.00.[16] This estimate does not include the time it would take for counsel to review the extracted e-mails. Moreover, these estimates do not account for a search of all TxDOT e-mail accounts on backup tapes (as requested by Plaintiff) that would require Defendant TxDOT to individually access approximately 10,000 employee e-mail accounts, and thereby exponentially increase the time and cost imposed on TxDOT.[17] The Court recognizes that such a cost represents a significant burden to a public agency.[18] As such, the Court finds that e-mails on Defendant TxDOT's backup tapes are not reasonably accessible. 2) Plaintiff has Not Shown Good Cause to Obtain ESI Discovery from TxDOT's Backup Tapes. As noted above, even though TxDOT has demonstrated that the ESI from its backup tapes is not reasonably accessible, Plaintiff could still obtain discovery by showing “good cause, considering the limitations of Rule 26(b)(2)(C).” Fed. R. Civ. P. 26(b)(2)(B). However, the Court does not believe that Plaintiff has met his burden when considering the seven factors set out in the advisory committee notes to Rule 26(b)(2), which are: (1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties' resources. Fed. R. Civ. P. 26, advisory committee notes to Rule 26(b)(2), 2006 Amendment. *7 The first factor, the specificity of the discovery request, weighs in favor of Defendant. As detailed above, the parties have not been able to agree on the scope of the search for ESI, i.e., which e-mail accounts will be searched and what search terms will be utilized. Supra pp. 3–4. Next, the second factor, the quantity of information available from other and more easily accessed sources, also weighs in favor of Defendant TxDOT. Defendant TxDOT has already indicated that it found 30,000 e-mails with the term “Kleppinger” from a search, which appears to have been performed on all live e-mail accounts. (See Dkt. No. 129, ¶ 10; Dkt. No. 154 ¶ 7). The results of this search (as limited by the Court), along with the additional court-ordered searches, will provide thousands of e-mails more readily accessible (to be reviewed for relevancy) than those on backup tapes. The third and fourth factors, the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources, and the likelihood of finding responsive information on the backup tapes, also weigh in favor of Defendant TxDOT. There 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. More specifically, Plaintiff has not shown that as a result of Defendant TxDOT's alleged noncompliance with the litigation hold,[19] e-mails no longer exist in live accounts or XML files, which would be found from a search of the backup tapes. Regarding the fifth factor, predictions as to the importance and usefulness of the further information, weighs in favor of Defendant TxDOT since Plaintiff has not stated with any certainty whether a search of the backup tapes will yield additional relevant, useful information or how much information will be produced. See Tucker v. Am. Int'l Grp., Inc., 281 F.R.D. 85, 94–95 (D. Conn. March 15, 2012); Johnson v. Neiman, No. 4:09cv00689, 2010 WL 4065368, 2010 U.S. Dist. LEXIS 110496, at *7–8 (E.D. Mo. Oct. 18, 2010); Helmert v. Butterball, LLC, No. 4:08cv00342, 2010 U.S. Dist. LEXIS 60777, at *30 (E.D. Kan. May 27, 2010). However, the sixth and seventh factors, the importance of the issues at stake in the litigation, and the parties' resources, weigh in favor of Plaintiff. Here, important issues are at stake regarding whether TxDOT maintains a policy of discriminating or retaliating against certain groups and whether it properly handles discrimination and retaliation complaints. In addition, Defendant TxDOT is a large state agency with resources available to conduct a search of its backup tapes. Notably, a court should not treat the “good cause” factors as a checklist; rather, the factors should be weighed by importance. Johnson, 2010 U.S. Dist. LEXIS 110496, at *7 (citation omitted); Helmert, 2010 U.S. Dist. LEXIS 60777, at *30–31 (citation omitted). Here, the Court finds it significant that as a result of this Order, Defendant TxDOT will be required to search and review a significant amount of e-mails (likely to number in the thousands) available on live accounts and XML files. Furthermore, Plaintiff is unable to specifically point to any relevant e-mails that may exist only on backup tapes. (April 12, 2012 Motions Hearing at 10:48:35). Thus, the Court concludes that, since Plaintiff will receive production of numerous emails from reasonably accessible sources, the slim likelihood that new and relevant information may be discovered does not outweigh the substantial burden and expense required to retrieve the information from Defendant TxDOT's backup tapes.[20] As one district court explained, “[n]o party, including the State, has an unlimited litigation budget to pay for document production efforts that in all likelihood are of marginal benefit.” Major Tours, Inc. v. Colorel, Civil No. 05–3091, 2009 WL 3446761, 2009 U.S. Dist. LEXIS 97554, at *14 (D.N.J. Oct. 20, 2009). 3) Cost–Shifting of ESI Discovery from TxDOT's Backup Tapes is Appropriate. *8 The Court notes that Rule 26(b)(2) also allows it to specify conditions for discovery of ESI. Fed. R. Civ. P. 26(b)(2)(B). For example, when the burden of a request outweighs the likely benefit, courts may shift all or part of the cost of production to the requesting party. See Fed. R. Civ. P. 26, advisory committee notes, 2006 Amendment (“The conditions [set by the court] may also include payment by the requesting party of part or all of the reasonable costs of obtaining information from sources that are not reasonably accessible.”); Major Tours, Inc., 2009 U.S. Dist. LEXIS 97554, at *16; Kilpatrick v. Breg, Inc., No. 08–10052–CIV, 2009 WL 1764829, 2009 U.S. Dist. LEXIS 52723, at *13 (S.D. Fla. June 22, 2009) (court allowed plaintiff, at its own expense, to hire outside vendor to confirm completeness of defendant's electronic document production); Zubulake, 217 F.R.D. at 318 (“cost-shifting should be considered only when electronic discovery imposes an ‘undue burden or expense’ on the responding party”); Byers v. Ill. State Police, No. 99 C 8105, 2002 U.S. Dist. LEXIS 9861, at *33, 37 (N.D. Ill. May 31, 2001). Since Plaintiff has failed to show good cause to order production of e-mails from backup tapes, cost-shifting seems appropriate. See id. at *19; Kilpatrick, 2009 U.S. Dist. LEXIS 52723, at *13; Byers, 2002 U.S. Dist. LEXIS 9861, at *37 (court shifts costs of producing archived emails from backup tapes to plaintiffs when plaintiffs have not established existence of relevant emails on backup tapes). Requiring Plaintiff to pay (at least) part of the cost of production provides him with an added incentive to conduct discovery proportionate to its likely benefit. See Major Tours, 2009 U.S. Dist. LEXIS 97544, at *19; Byers, 2002 U.S. Dist. LEXIS 9861, at *38. As such, the Court may consider ordering Defendant TxDOT to have ACS restore from the backup tapes up to three individual Defendants' e-mail accounts for up to three dates. However, the Court is not going to give its approval for a fishing expedition. In other words, if the Court later orders a production, Plaintiff will be required to either pay part or all of the reasonable costs associated with obtaining the discovery. D. Whether TxDOT Should Produce ESI in Its Native Format with Metadata 1) Legal Standard for Producing ESI in a Reasonably Usable Format Including Metadata. Federal Rule of Civil Procedure 30 provides that “[a] party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request.” Fed. R. Civ. P. 30(b)(2)(E)(i). However, a party is not required to produce ESI in the form in which it is ordinarily maintained as long as it is produced in a reasonably usable form. Fed. R. Civ. P. 30 advisory committee notes, 2006 Amendment (“If the forms of production is not specified by party agreement or court order, the responding party must produce electronically stored information either in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.”). Notably, in resolving disputes over the form of ESI production, courts are not limited to the forms initially chosen by the requesting party or stated by the responding party. Fed. R. Civ. P. 34 advisory committee notes, 2006 Amendment. The option to produce ESI in a reasonably usable form does not mean that a responding party is free to convert ESI from its original form to “a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in litigation.” Id. If the requested information is ordinarily maintained in an electronically searchable format, “the information should not be produced in a form that removes or significantly degrades this feature.” Id. Courts have thus ordered production of ESI in either native format or in an electronically searchable format. See Romero v. Allstate Ins. Co., 271 F.R.D. 96, 107–08 (E.D. Pa. Oct. 21, 2010) (court granted plaintiffs' request for responsive documents to be produced in native format allowing party to have the same ability to access, search and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case); Camesi v. Univ. of Pittsburgh Med. Ctr., No. 09–85J, 2010 WL 2104639, at *7 (W.D. Pa. May 24, 2010) (court ordered defendants to produce all ESI in a searchable format); Goodbys Creek LLC v. Arch Ins. Co., No. 3:07–cv–947–J–34, 2008 WL 4279693, at *3 (M.D. Fla. Sept. 15, 2008) (court held conversion of e-mails from native format to TIFF file was not acceptable to the extent defendant maintains requested documents in a form that makes them searchable by electronic means). *9 Notably, ESI produced in its native format includes metadata. See Fed. R. Civ. P. 26 advisory committee notes, 2006 Amendment. Metadata may contain “information describing the history, tracking or management of an electronic file,” which may be useful in litigation. Id.; see also The Sedona Conference, The Sedona Conference Cooperation Proclamation: Resources for the Judiciary, 24 (Ronald J. Hedges et al. eds., Aug. 2011 Public Comment Version) available at https://thesedonaconference.org/download-pub/425 (metadata may assist in authenticating documents by revealing information relating to a document including: date of creation, edits, comments; deletion dates and times; access and distribution; and authorship or the username associated with those tasks). Accordingly, courts have ordered production of ESI in its native format, including metadata, when the information may be of particular significance to a party's claims or defenses. See White v. Graceland Coll. Ctr. for Prof'l Dev. & Lifelong Learning, Inc., No. 07–2319–CM, 2009 WL 722056, at *4–5 (D. Kan. Mar. 18, 2009) (court ordered defendant to reproduce e-mails and attachments in native format where parties disputed creation date of documents); Williams v. Spring/United Mgmt. Co., 230 F.R.D. 640, 653–657 (D. Kan. Sept. 29, 2005) (in age discrimination case, court ordered production of Microsoft Excel spreadsheets in native format where metadata could be relevant to plaintiff's claims that defendant reworked pools of employees to improve distribution to pass adverse impact analysis). In recognizing the benefits of producing metadata, “[m]ultiple courts have found that ... the burden falls on the party objecting to its production to show undue hardship and expense.” Romero, 271 F.R.D. at 107 (citations omitted). 2) Defendant TxDOT has Not Shown that Production of ESI in an Electronically Searchable Format Including Metadata is Unduly Burdensome. In his motion, Plaintiff states that he is interested in production of ESI in native format in order to electronically search files, which it appears TxDOT is in opposition. (See Dkt. No. 70, ¶ 76). Here, Defendant TxDOT has already produced some ESI as TIFF files or hardcopy printouts that cannot be electronically searched. As noted above, Defendant TxDOT may not produce ESI in a form that “removes or significantly degrades” the feature to electronically search files. Moreover, Defendant TxDOT has not addressed why production of ESI in an electronically searchable format would be unduly burdensome. Consequently, while Plaintiff may not be entitled to production of ESI in native format, he is entitled to production of ESI in an electronically searchable form. Regarding the issue of metadata, the Court notes that metadata could show whether Plaintiff sent e-mails from his TxDOT e-mail account to his personal e-mail account, actions which allegedly prompted Defendant TxDOT to terminate Plaintiff. (See April 12, 2012 Motions Hearing at 11:15:10). Moreover, upon review of a sample metadata page provided by Mr. Wagner, it appears to the Court that metadata provides significant detail regarding (1) who were the recipients of the email, (2) when a recipient read the e-mail, (3) if the recipient responded to the sender of the e-mail, and (4) if the recipient forwarded the e-mail to anyone else. (See Dkt. No. 120, Ex. A, Ex. 1). Thus, metadata in e-mails could be of particular significance to Plaintiff's claims in this matter. Furthermore, at the April 25th hearing, Mr. Wagner stated that it would not be difficult to produce all responsive, non-privileged e-mails with metadata (if any) to Plaintiff on a compact disk. (April 25, 2012 Status Conference at 1:43:09).[21] As such, the Court concludes that Plaintiff is entitled to production of e-mails without redaction of metadata. Plaintiff also seeks metadata for “all versions of the investigation reports and for any disciplinary actions and forms.” (April 25, 2012 Status Conference at 1:41:00). Plaintiff contends that the metadata he seeks will reveal whether revisions (if any) were made, who they were made by, where the documents were stored, and to whom the document was forwarded. (Id. at 1:41:35). Since these documents are directly related to Plaintiff's claims, the possibility of relevant information weighs in favor of production of metadata. Significantly, Defendant TxDOT has failed to explain how producing metadata for these documents would be unduly burdensome or expensive. Therefore, Defendant TxDOT must produce metadata for the following documents: all investigation reports concerning Plaintiff's previously filed grievances of discrimination and retaliation, and any documents relating to disciplinary actions against Plaintiff. *10 Finally, the Court notes that electronic documents may still retain metadata after they are converted to alternative formats that can be electronically searched. See Cannata v. Wyndham Worldwide Corp., No. 2:10–cv–00068, 2012 WL 528224, 2012 U.S. Dist. LEXIS 20625, at *14 (D. Nev. Feb. 17, 2012) (ordering production of ESI in the form of searchable images which included metadata fields showing relevant information such as date and time document was created and revised, as well as where it was stored). Thus, it may not be necessary for TxDOT to produce ESI in native format if it can convert the ESI to a format that is electronically searchable and that includes metadata. As such, if the ESI produced by TxDOT pursuant to this Order is ordinarily maintained in an electronically searchable format, TxDOT must produce it in a form that maintains this feature, along with metadata. III. CONCLUSION For the foregoing reasons, “Plaintiff Eddie Kleppinger, Jr.'s Opposed Motion to Compel Discovery and Request for Sanctions and Brief' (Dkt. No. 70, ¶ 73) is GRANTED IN PART AND DENIED IN PART. The Court ORDERS Defendant TxDOT to conduct a search for the term “Kleppinger” without any limitation, in the live accounts and/or XML files of Defendants Leonel Garza, Marco Salgado, Brenda Harper and Doris Howdeshell. For these four individual Defendants, TxDOT should also search utilizing the terms “Ed” or “Eddie” without other limiting search terms. The Court further ORDERS Defendant TxDOT to search with the term “Kleppinger”, without any limitation, in the live accounts of Defendants Yolanda Arriaga, George Ebert, Edward Serna, Amadeo Saenz and any investigator who worked on Plaintiff's complaints handled by TxDOT's civil rights department. The Court further ORDERS Defendant TxDOT to search every other live account for the term “Kleppinger” in conjunction with fifteen additional search terms chosen by Plaintiff, subject to the Court's approval. Within five (5) days of entry of this Order, Plaintiff must submit an advisory to the Court proposing fifteen limiting search terms. Plaintiff should also propose additional search terms, in order of his preference, in case the Court determines a search term in his list of fifteen in not workable. The Court will then issue an Order stating whether it approves of the proposed search terms. After conducting a review of e-mails obtained through the above-ordered searches, Defendant TxDOT must produce all non-privileged, relevant, responsive emails in an electronically searchable format, without redaction of metadata, within forty-five (45) days of entry of this Order. The Court further ORDERS Defendant TxDOT to produce, within forty-five (45) days of entry of this Order, the following documents in an electronically searchable format (including metadata) if these documents are ordinarily maintained in a form that includes this feature: all investigation reports concerning Plaintiff's previously filed grievances of discrimination and retaliation, and any documents relating to disciplinary actions against Plaintiff. Finally, Plaintiff will have fourteen (14) days from entry of this Order to submit a motion to the Court, indicating his interest in pursuing (at his expense) restored data from backup tapes as indicated above. IT IS SO ORDERED. Footnotes [1] On March 4, 2012, the Court issued an Order ruling on all other discovery requests in Plaintiff's motion to compel. (See Dkt. No. 122). [2] Plaintiff's Request for Production Nos. 6, 9, 12–13, 19, 22, and 25 requests in general any communication or documents regarding Plaintiff, including e-mails on Defendant TxDOT's computer systems. (See Dkt. No. 70, ¶¶ 99–100, 105–107, 112–115, 126–127, 132–133, and 138–139). [3] In his affidavit, Mr. Wagner stated that the following number of e-mails with the term “Kleppinger” were found in certain individual Defendants' e-mail accounts or XML files: Edward Serna: 0; Amadeo Saenz: 4; Brenda Harper: 893; Leonel Garza: 1,119; George Ebert: 54; Yolanda Arriaga: 138; Marco Salgado: 626. (See Dkt. No. 129, Ex. A, ¶¶ 11–12, 14–15, 18–20). Mr. Wagner did not state the number of e-mails with the term “Kleppinger” found in Defendant Doris Howdeshell's e-mails preserved as XML files. Defendants Jesse Ball and Naomi Flores no longer have e-mail accounts at TxDOT. (Dkt. No. 120, Ex. A, ¶¶ 16–17). Nor do they have e-mails available as XML files. (Id.; Dkt. No. 149, p. 2). [4] In his advisory, Plaintiff requests “that he be allowed access to the Defendant's computers and storage devices for purposes of examination and inspection under the Federal Rules.” (See Dkt. No. 154, ¶ 11). Plaintiff contends that he has provided an exhibit (Dkt. No. 133) that contradicts information provided by Mr. Wagner. (Id.). However, Plaintiff has not specifically explained how his exhibit contradicts Mr. Wagner's statements. Since this request has not been properly briefed in a motion where Defendant TxDOT can respond, this request is DENIED without prejudice. Furthermore, the Court sees no reason why Plaintiff cannot question Mr. Wagner regarding this exhibit during a deposition. [5] While Plaintiff and TxDOT have agreed to certain limiting search terms in conjunction with a search for the terms “Ed” and “Eddie,” Plaintiff would like to include additional search terms, which TxDOT opposes. (See Dkt. No. 153, pp. 1–2; Dkt. No. 154, ¶¶ 4–5). [6] By way of example, the Court notes that in his complaint, Plaintiff mentions that Michelle Salazar–Limon, an investigator for TxDOT's Office of Civil Rights, made statements to him concerning her investigation into his allegations of discrimination and retaliation. (See Dkt. No. 40, ¶¶ 41, 49–50). [7] Since Defendants Jesse Ball and Naomi Flores no longer have live accounts or e-mails preserved as XML files, there is no point in requiring TXDOT to perform a search of their files. Supra note 3. [8] See Hudson v. AIH Receivable Mgmt. Servs., No. 10–2287, 2011 WL 1402224, 2011 U.S. Dist. LEXIS 39993, at *11 (D. Kan. April 13, 2011) (court ordered defendant to conduct search of all active and stored e-mails to include e-mails that identify plaintiff by name); Helmert, 2010 U.S. Dist. LEXIS 60777, at *11–12 (court found plaintiff's proposed electronic search terms corresponding to names of plaintiffs from cases filed against defendant's related entities narrowly tailored to lead to discovery of relevant information). [9] See Burus v. Wellpoint Cos., Inc., 434 Fed.Appx. 475, 478–79 (6th Cir. 2011) (affirming magistrate court's order requiring defendant to produce e-mails by performing search for plaintiff's first name or last name along with thirteen additional search terms). [10] Defendants Yolanda Arriaga, George Ebert, Brenda Harper, Amadeo Saenz, Marco Salgado, and Edward Serna have e-mails on backup tapes. (See Dkt. No. 120, Ex. A, ¶¶ 11–12, 14, 18–20). Defendants Jessie Ball, Naomi Flores, and Leonel Garza do not have e-mails on backup tapes. (Id. at Ex. A, ¶¶ 13, 15–17; See Dkt. No. 149, p. 2). It is uncertain whether any e-mails from Defendant Howdeshell's account exist on backup tapes. (See Dkt. No. 149, p. 2). [11] TxDOT's backup manager performs three types of backups: incremental, differential, and full. (See Dkt. No. 120, Ex. A, ¶ 6). Incremental backup data changes made that day. (Id.). Differentials backup all data changes made since the last full backup. (Id.). Full backups backup all data whether it has been changed or not. (Id.). All backups are kept for sixty days after being performed. (Id.). After sixty days, only one full backup per month is kept. (Id.). Each full backup is kept 400 days after being performed. [12] IBM (Team for Texas) was Defendant TxDOT's backup system manager at the time Mr. Wagner submitted his request for information. IBM's contract with Defendant TXDOT terminated on April 30, 2012. (See Dkt. No. 149, p. 3; April 12, 2012 Motions Hearing at 10:50:38). [13] Mr. Wagner requested that IBM estimate how long it would take to recover data from May 11, 2011, June 11, 2011, July 11, 2011, March 17, 2012, and April 6, 2012. (See Dkt. No. 153, Ex, A, ¶ 4). E-mails from May 11, 2011 and June 11, 2011 from Defendant Brenda Harper's account cannot be recovered due to bad backup tapes. (Id.). In addition, IBM's estimate assumes there are adequate disk space, network bandwidth, and tape drive availability to perform the recovery from the backup tapes. (Id.). [14] This estimate assumes an average of eight hours per restore for thirteen restores at $45.00 per hour. (Id.). [15] This estimate assumes 2,800 full-time employee hours at $45.00 per hour. (Id.). [16] This figure assumes $93,227.75 to restore a year's worth of e-mail data for the six individual Defendants with emails on backup tapes and $126,000.00 for Defendant TxDOT to search and extract these e-mails. [17] See, e.g., Thermal Design, Inc. v. Guardian Bldg. Prod., Inc., No. 08C–828, 2011 WL 1527028, 2011 U.S. Dist. LEXIS 50108, at *3 (E.D. Wis. Apr. 20, 2011) (defendants met burden of demonstrating ESI sought by plaintiff was not reasonably accessible where required search and review of documents would take several months and cost approximately $2.5 million); Johnson v. Neiman, No. 4:09cv00689, 2010 WL 4065368 2010 U.S. Dist. LEXIS 110496, at *3 (E.D. Mo. Oct. 18, 2010) (court held that defendants' backup tapes were not reasonably accessible where search would require cataloguing and restoring of approximately 5,880 backup tapes at $76.03 per hour); Helmert v. Butterball, LLC, No. 4:08cv00342, 2010 U.S. Dist. LEXIS 60777, at *27 (E.D. Kan. May 27, 2010) (court held that defendant's backup tapes were inaccessible where to recover e-mails, restoration of post office would take several days, required hardware would cost approximately $10,000, and network team would take additional time installing software, finding appropriate backup tape and restoring that tape before search of email accounts could begin). [18] See Byers v. Ill. State Police, No. 99 C 8105, 2002 U.S. Dist. LEXIS 9861, at *37 (N.D. Ill. May 31, 2001) (court concludes plaintiffs' request would impose significant financial burden on defendants where total estimated cost of responding to plaintiffs' e-mail request from backup tapes would be between $20,000 and $30,000). [19] The October 2009 litigation hold notice required employees to “identify, locate, and preserve all information potentially related to this claim.” (See Dkt. No. 70, Ex. D, p. 2). Employees were instructed to “avoid both the purposeful and inadvertent destruction of information,” and were told to disable e-mail automatic delete functions on computers or “take affirmative steps to ensure the preservation of any information related to the claim.” (Id. at p. 3). The October 2009 litigation hold notice superseded TxDOT's regular Record Retention Schedule, and required employees to retain a document covered by the litigation hold even if it was eligible for destruction. (Id. at p. 4). [20] See Thermal Design, 2011 U.S. Dist. LEXIS 50108, at *5 (plaintiff failed to explain why extensive amount of information it seeks is of such importance that is justifies imposing an extreme burden on certain defendants); Major Tours, Inc. v. Colorel, Civil No. 05–3091, 2009 WL 3446761, 2009 U.S. Dist. LEXIS 97554, at *12 (D.N.J. Oct. 20, 2009) (“Plaintiffs have not produced evidence that the backup or archived e-mails contain relevant information that is not otherwise available or cumulative of other evidence.”). [21] Mr. Wagner has also clarified that metadata for TxDOT e-mails does not show whether an e-mail has been revised or changed and that e-mails preserved as XML files do not contain metadata. (See Dkt. No. 120, Ex. A, ¶¶ 8–9).