SOPHIA & CHLOE, INC., a California Corporation, Plaintiff, v. BRIGHTON COLLECTIBLES, INC., a California Corporation, Defendant CASE NO. 12cv2472-AJB(KSC) United States District Court, S.D. California Signed May 28, 2014 Counsel Kenneth M. Fitzgerald, Keith M. Cochran, Douglas J. Brown, Chapin Fitzgerald LLP, Curtis G. Carll, San Diego, CA, for Plaintiff. Keith J. Wesley, Peter W. Ross, Browne George Ross LLP, Los Angeles, CA, Steven W. Winton, Winton Law Corporation, San Diego, CA, for Defendant. Crawford, Karen S., United States Magistrate Judge ORDER DETERMINING DISCOVERY DISPUTE *1 Before the Court is the parties' renewed dispute regarding plaintiff's request for, inter alia, forensic examinations of computers used by certain defense representatives. [Doc. Nos. 35, 36] After considering the underlying arguments contained in the moving papers, as well as the relevant case law and statutory authority, and for the reasons outlined in greater detail below, plaintiff's request [Doc. No. 35] is DENIED. I. BACKGROUND This case involves a dispute over competing lines of Moroccan-inspired jewelry. [See Doc. No. 1, Complaint] The action is brought by jewelry designer Sophia & Chloe (“plaintiff”) against Brighton Collectibles (“defendant”), designer and manufacturer of women's accessories, including jewelry. Id. at 2. Plaintiff alleges copyright infringement, trademark infringement, and unfair competition pursuant to the Copyright Act, 17 U.S.C. §§ 501, et seq., the Lanham Act, 15 U.S.C. § 1125(a), California Business and Professions Code, §§ 17200, et seq. and § 17500, and California common law principles. Plaintiff contends that defendant's “Toledo” line of accessories infringes on and unfairly competes with plaintiff's “Kiss” collection. On August 15, 2013, plaintiff filed its original Motion seeking a Court Order compelling defendant to produce certain computers for forensic examination. [Doc. No. 31] Specifically, plaintiff sought an Order authorizing examinations of the computers used by the two individuals identified as those responsible for creating and approving defendant's allegedly infringing Toledo collection, Brighton CEO Jerry Kohl and designer Kim Cruser-Scott. The stated purpose of the forensic examinations was to ascertain if any internet history or internal electronic communications were recoverable related to the creation of the Toledo line or to plaintiff's Kiss collection. Plaintiff argued that, as of August 15, 2013, defendant had failed to produce any internal communications regarding the creation of its Toledo collection. [Doc. No. 31, p. 1] Defendant confirmed that it had searched for the sought after communications and found none, but declined plaintiff's proposal that Mr. Kohl and Ms. Cruser-Scott each sign declarations stating that no such communications exist. Id. When defendant refused to produce said declarations, plaintiff proposed forensic examinations of the computers used by Mr. Kohl and Ms. Cruser-Scott. On August 23, 2013, defendant filed an Opposition to plaintiff's Motion. [Doc. No. 32] Defendant objected to the proposed forensic examinations on grounds that the requested relief was speculative and unreasonably intrusive, and that the lack of internal electronic communication regarding its own Toledo line is not surprising given that “Brighton designers sketch their designs with pencil on paper.” [Doc. No. 32, p. 7] As further explained: “[The designers] do riot create their designs digitally. They do not routinely email each other or others at Brighton about the creation of their designs.” Id.Lastly, given the age of the internet search histories requested by plaintiff, defendant asserted that the “non-existence of those histories is not all that surprising considering their ephemeral nature.” [Doc. No. 32, p. 4] *2 On September 13, 2013, the Court issued an Order Determining Discovery Dispute in which it denied without prejudice plaintiff's request for a Court Order compelling defendant to submit to the desired forensic computer examinations. [Doc. No. 33] The Court specifically found that given the absence of specific and concrete evidence of defendant's concealment, destruction, or failure to preserve evidence, as well as “plaintiff's ability to explore these topics through other written and oral discovery tools, the burden and expense of forensic examinations at this discovery stage is unwarranted.” [Doc. No. 33, p. 4] In denying plaintiff's request without prejudice, the Court held: “Should plaintiff obtain additional information through oral and written discovery to support its assertions, the Court will consider a renewed Motion, if supported.” Id. On February 2, 2014, the parties filed Renewed Joint Motion Number 2 for Determination of Discovery Dispute. [Doc. No. 35] On the same date, defendant filed a Separate Opposition to Motion to Compel Forensic Computer Inspection.[1] [Doc. No. 36] The Court notes that this renewed Motion is brought nearly 5 months after plaintiff's initial request was denied without prejudice, and more than 3 months after the close of fact discovery on October 18, 2013. [Doc. No. 30, (First Am. Scheduling Order) ] Further, the Court notes that, while substantially similar to the relief requested in the initial Motion, plaintiff's sought-after relief has expanded, in that plaintiff now seeks to discover IP addresses associated with Mr. Kohl and Ms. Cruser-Scott.[2] In the dispute presently before this Court, plaintiff asserts that, following the Court's September 13, 2013 ruling, defendant deposed (1) a Rule 30(b)(6) designee regarding defendant's document retention and production policies; (2) defendant's CEO Jerry Kohl; and, (3) the designer credited with developing the allegedly infringing “Toledo” line, Kim Cruser-Scott. [Doc. No. 35, p. 8] Plaintiff contends that, with the testimony from these depositions, “the evidence is clear that [defendant] failed to preserve documents and information relevant to this case, is concealing that information now, and likely engaged in or allowed the destruction of critical evidence demonstrating its copying of [plaintiff's] jewelry designs.” Id. *3 The deposition testimony proffered by plaintiff fails to provide concrete evidence that defendant concealed or intentionally destroyed evidence. Thus, forensic examinations of defendant's computers are not warranted at this juncture. There is evidence, however, that defendant failed to take the necessary steps to adequately preserve documents and information relevant to this action, specifically by failing to institute a formal written document retention and destruction policy, failing to adequately instruct employees to preserve documents, and failing to produce certain key items identified during discovery. These failures demonstrate that defendant's document retention practice was and is inadequate. Accordingly, good cause exists to compel defendant to search its backup tapes for information relevant to this action, at its cost, in the manner prescribed below. II. DISCUSSION The scope of discovery under Rule 26(b) is broad: “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party involved in the pending action. Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” FED.R.CIV.P.26(b). However, a court may limit discovery of relevant material if it determines that the discovery sought is unreasonably cumulative or duplicative, or obtainable from some other source that is more convenient, less burdensome or less expensive, or the burden or expense of responding to the proposed discovery outweighs the likely benefit. FED.R.CIV.P. 26(b)(2)(C)(i)-(iii). The party resisting discovery generally bears the burden of showing that the discovery requested is irrelevant to the issues in the case or is overly broad, unduly burdensome, unreasonable, or oppressive. Henderson v. Holiday CVS, L.L.C., 269 F.R.D. 682, 686 (S.D. Fla. 2010). If the resisting party meets its burden, the burden shifts to the moving party to show the information is relevant and necessary. Id. The Court finds that defendant has again sufficiently met its burden, as the party resisting plaintiff's demand for a forensic examination. Given the legitimate privacy and other interests at issue, absent “specific, concrete evidence of concealment or destruction of evidence,” courts are generally cautious about granting a request for a forensic examination of an adversary's computer. Advante Int'l Corp. v. Mintel Learning Technology, 2006 WL 1806151 at *2 (N.D. Cal. June 29, 2006); John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008). While this Court acknowledges plaintiff's frustration that certain items were no longer within defendant's custody or control by the time defendant received plaintiff's July 2012 cease-and-desist letter, “mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures.” John B., 531 F.3d at 460 (citing McCurdy Group, LLC v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir. 2001)). This Court finds that none of the specific instances of defendant's alleged discovery shortcomings identified by plaintiff rise to a level warranting the extreme, expensive, and invasive remedy of forensic computer examination. The evidence provided by plaintiff in the instant Renewed Motion is more specific than that relied on in the previous Motion, but again is based upon speculation and weak character evidence of defendant's discovery methods in an unrelated lawsuit not presently before this Court. Although the evidence presented is insufficient to warrant forensic examinations of defendant's computers, the Court is not satisfied with defendant's explanations regarding its preservation practices, document production to date, and the items within its reasonable reaches and control. Plaintiff advances several shortcomings related to defendant's search, preservation, production, and alleged concealment of documents and information during the discovery process. From this Court's reading of the Renewed Joint Motion, plaintiff identifies the following four deficiencies in defendant's conduct: (1) failure to develop a formal, written document retention policy (and counsel employees of the same) concerning the preservation of evidence relevant to this litigation in response to plaintiff's cease-and-desist-letter in July 2012; (2) failure to preserve or conduct an adequate search of the internet histories of Mr. Kohl and Ms. Cruser-Scott; (3) failure to preserve or adequately search for relevant emails known to have been sent or received by Mr. Kohl or Ms. Cruser-Scott (specifically taking issue with the electronic search terms utilized and the search of work-assigned email addresses only); and, (4) failure to search backup tapes for any potentially deleted emails.[3] As a result of these alleged shortcomings, plaintiff contends there are three missing pieces of “key” evidence which should have been produced, but were not: (1) the original JPEG files for the pictures of a bowl and mosque wall that Ms. Cruser-Scott testified were part of her inspiration for the creation of defendant's Toledo line; (2) the automated email sent to Ms. Cruser-Scott's Brighton account generated by her scanning the initial sketches of the Toledo line; and, (3) unused portions of the two promotional videos that defendant filmed to market the Toledo collection, wherein Ms. Cruser-Scott discusses her inspiration for the line. *4 Taking these four issues in the order outlined above, the Court will incorporate defendant's responses to each and provide its own analysis in each sub-section below. A. Failure to Issue a Formal Litigation Hold Plaintiff argues that, in response to its July 11, 2012 cease-and-desist letter, defendant failed to take adequate steps to preserve discoverable evidence in this case. [Doc. No. 35, p. 10] Specifically, plaintiff contends that defendant failed to instruct its employees to preserve evidence relevant to this action. Id. Defendant generally responds that, given the size of its company and its heavy and regular involvement in lawsuits of this nature, it relied on general company policies in place both before and after the letter was received, obviating the need for more specific preservation instructions. [Doc. No. 36, pp. 4-5, 10] Defendant asserts that “as a matter of course” its practice is to preserve all emails that are sent to or received by designers, like Ms. Cruser-Scott, for a period of five years. [Doc. No. 36, pp. 4, 5] These emails are allegedly maintained either in the inbox of the designer, or on backup tapes in cases of deletion. Id. As to other design-related documents, sketches, or spec sheets which might also be relevant in an infringement action, defendant contends that they are preserved “pursuant to Brighton's normal policy.” [Doc. No. 36, p. 5] For designs which are ultimately selected for production, these items are necessarily preserved in the ordinary course of business. Id. Brighton's corporate representative further testified that no communications were sent by the company and manufacturer of the Toledo jewelry related to the need to preserve documents for this lawsuit. Id. As stated, “[w]e looked at our document preservation policies in general and concluded that they adequately preserved evidence for this case.” Id. Documents preserved for a period of five years in accordance with this policy included emails. [Doc. No. 36, p. 5] Defendant argues that given its normal retention practice, it reasonably believed that additional steps were not necessary in order to comply with its discovery obligations in this action. Upon receipt of plaintiff's July 2012 letter, and based upon defense counsel's understanding that defendant's allegedly infringing line was designed in late 2011, defendant determined that its normal five year practice would capture all relevant emails, documents, and information, and that additional steps with respect to document preservation were unnecessary. [Doc. No. 36, pp. 4-5] Plaintiff argues that by failing to issue a litigation hold specific to this action, and instead relying on general, unwritten policies, defendant failed to meet the standard of care required under the Federal Rules of Civil Procedure. The cases relied on by plaintiff, Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) and Lewis v. Ryan, 261 F.R.D. 513, 518 (S.D. Cal. 2009), provide that normal document retention/deletion policies must be suspended in response to litigation. The driving force behind the Court's rationale in both cases stemmed from the conclusion that the standard policies at issue in those cases were inadequate to preserve the relevant information subject to discovery. By contrast, in this action, based upon the representations made by defendant's Rule 30(b)(6) designee, defendant's normal retention practice, if followed, would have prevented the destruction of documents relevant to this litigation. Although plaintiff fails to cite any authority that such a policy must be written in order to comply with a party's discovery obligations, in reviewing the record before this Court, it is evident that defendant's preservation practices were either inadequate or not followed. Despite defendant's representations about its document retention “policy,” it maintains no formal, written policy evidencing this practice. Nor could defendant provide any clarity regarding how this policy was communicated to its employees. This “policy” is more appropriately labeled a “practice,” as it is not formally written and distributed to employees. Its practice, to preserve all emails sent or received by designers for a period of five years “as a matter of course,” was not followed in this case, given defendant's failure to produce certain key items known to exist. *5 Specifically, there are three missing pieces of “key” evidence plaintiff alleges should have been produced but were not: (1) the original JPEG files for the pictures of a bowl and mosque wall that Ms. Cruser-Scott testified were part of her inspiration for the creation of defendant's Toledo line (hereinafter “the inspiration pictures”); (2) the automated email sent to Ms. Cruser-Scott's Brighton account generated by her scanning the first sketches of the Toledo line; and, (3) unused portions of the two promotional videos that defendant filmed to market the Toledo collection, wherein Ms. Cruser-Scott discusses her inspiration for the line. Had defendant's document retention “policy” been complied with, these documents would have been identified and produced in response to plaintiff's document requests. The fact that they were not suggests that defendant's unwritten retention practice was inadequate and/or not enforced. The original JPEG files of the inspiration pictures (which importantly, contain metadata indicating when the pictures were first saved to the designer's computer), the automated email memorializing the designer's scanning of her initial drawings, and any remaining unused footage of the designer discussing her inspiration and creative process regarding the allegedly infringing line are all extremely relevant to the defense of independent creation. These items are also relevant to determining the timeline of defendant's creation of the allegedly infringing line. These topics are directly at issue in this action. While the evidence presently before the Court does not demonstrate that defendant actively or intentionally concealed or allowed spoilation of evidence, it is apparent that defendant's policy did not result in the retention of this highly relevant information.[4] Accordingly, a targeted search of defendant's backup tapes for these three items, as well as to implement the search protocol described in section II(B), supra, is warranted at this juncture. As to which party will bear the cost of this search of defendant's backup tapes, “[a] court should consider cost-shifting [under Rule 26] only when electronic data is relatively inaccessible, such as in backup tapes.” Zubulake, 217 F.R.D. at 323. Given the inaccessibility of backup tapes, the requesting party is often required to pay for such a search if ordered. In determining which party should bear the costs of searching for information stored electronically on backup tapes, courts have held that “the cost of producing data weighed against the likely relevance of the data determines whether cost-shifting is appropriate.” Radian Asset Assurance, Inc. v. College of Christian Bros. of New Mexico, 2010 WL 4928866, *5 (D. N.M. Oct. 22, 2010). “The more likely it is that the backup tape contains information that is relevant to a claim or defense, the fairer it is that the [responding party] search at is own expense. The less likely it is, the more unjust it would be to make the [responding party] search at its own expense.” McPeek v. Ashcroft, 202 F.R.D. 31, 34 (D.D.C. 2001). Weighing the costs of these targeted searches against the extremely high relevance of, at a minimum, the three specific items identified, this Court finds it appropriate for defendant, as the responding party, to search its backup tapes for these three items at its cost. To the extent that these key items cannot be located, defendant's retention practices, as represented to the Court, will be further placed in doubt. Their absence from the backup tapes might support an inference that spoilation occurred, thus necessitating further investigation and motion practice regarding the appropriateness of forensic computer examinations. To the extent that these items are located and produced, however, any future request by plaintiff for forensic examinations is unnecessary based on the record before this Court. While defendant's failure to issue a formal written litigation hold, in and of itself, was not a violation of its discovery duties warranting the invasive and expensive remedy of forensic computers examinations, its failure to issue a litigation hold regarding the dispute underlying this litigation, failure to adequately communicate its retention “policy” to its employees, and failure to enforce its policy raises the question of whether any policy was actually in place. Further, given defendant's resulting failure to produce relevant documents known to exist in response to plaintiff's discovery requests, fairness dictates that defendant should bear the burden and expense of searching for and retrieving from its backup tapes these three items, as well as implementing the search protocol described in section II(B), supra. Thus, defendant is ORDERED to search, at its cost, its backup tapes for these items. As to the two promotional videos specifically, defendant is instructed to search its emails and backup tapes, and to contact any third party involved in the creation of the same, and produce the requested video clips as this Court deems such footage to be within defendant's custody and control. B. Failure to Preserve and Search For Relevant Emails *6 Plaintiff contends that defendant failed to preserve or adequately search for relevant emails known to have been sent or received by Mr. Kohl and Ms. Cruser-Scott. Specifically, plaintiff argues that defendant “relied exclusively on inadequate keyword searches, and the purported search efforts of the two individuals accused of copying [plaintiff's] designs.” [Doc. No. 35, p. 19] Plaintiff also takes issue with the fact that only work-assigned email addresses were searched, and not personal email accounts. Id.Furthermore, plaintiff identifies certain inconsistencies in the deposition testimonies of Mr. Kohl and Mr. Wesley regarding whether Mr. Kohl personally searched his emails, or rather, a search was conducted on his behalf. Id. at 20. Defendant contends that it has produced all relevant emails in its possession and control, using a reasonable search protocol to which plaintiff never objected. [Doc. No. 36, p. 8] Its inability to produce documents from these email accounts regarding either plaintiff's line or defendant's allegedly infringing line is not surprising, defendant asserts, because it “did not consider [plaintiff's] designs” and its designers sketch their designs with pencil and paper. Id. While the search terms utilized by defendant were likely too limited, the time for plaintiff to object to the electronic search terms, methods, and protocol has long since passed. Plaintiff has been aware of the electronic search protocol and terms utilized by defendant since August 14, 2013, when the same was delineated in defendant's responses to plaintiff's second set of requests for production of documents. [Doc. No. 35-2, p. 10] Discovery in this action closed on October 18, 2013. [Doc. No. 30] Under the Chamber Rules of the undersigned Magistrate Judge, raising this issue 6 months after the pertinent responses were served, and nearly 4 months after the close of fact discovery is grossly untimely.[5] Notwithstanding the untimely presentation of this dispute to the Court, there is evidence to suggest that defendant's unwritten retention practice was inadequate and/or not followed, as discussed in greater detail in section II(A), supra. Given its size and sophistication, its lack of a written document retention policy (both in general and in response to this litigation), its practice of having individual employees search their own email accounts for relevant information, and its heavy reliance on backup tapes as part of its retention policy, defendant failed to meet its discovery obligations and created an unreasonable risk that documents relevant to this litigation would either be destroyed or rendered burdensome to retrieve (by having them fall to backup tapes). As defendant admittedly failed to produce certain emails that should have been produced if they had been retained for five years in accordance with its retention “policy,” this Court concludes that it is reasonable to order defendant to search its backup tapes for documents applying the same search terms previously used by defendant in reviewing its relevant email accounts. During the relevant timeframe for defendant's creation of its allegedly infringing design, roughly defined by this Court as May 1, 2011 to May 31, 2012, defendant is ORDERED to conduct a keyword search of its backup tapes utilizing the same search protocol and terms previously implemented. Further, as Ms. Lynn Rosenthal's Brighton email account may also contain emails of relevance to this litigation, defendant is ORDERED to conduct a search of this email account if it has not already done so, and the backup tapes seeking the same, using the same search terms and time period. Lastly, to the extent that defendant communicated with the manufacturer of the Toledo line, these communications are also subject to production, both from email and from backup tapes, and defendant is ORDERED to search its company email server and backup tapes for all relevant communications.[6] *7 As to any personal email addresses and accounts, plaintiff provides no evidence to suggest that the personal accounts were ever used to communicate concerning Brighton business. The only evidence to suggest that personal email addresses might have been used stems from Mr. Kohl's deposition testimony, during which a contemporaneous search of his phone revealed that he had a personal email address for Ms. Cruser-Scott. [Doc. No. 35-5, pp. 62-64] It was not until this search, however, that Mr. Kohl even recalled having a personal account for Ms. Cruser-Scott. Id. at 65. While Mr. Kohl was not asked to confirm whether he only used his Brighton-issued email account to correspond with Ms. Cruser-Scott, Ms. Cruser-Scott testified during her deposition that she communicated with Ms. Kohl onlyusing her Brighton-issued email account. [Doc. No. 35-5, p. 68] Accordingly, plaintiff's assertion that these personal email accounts should have also been searched, and that by extension defendant was derelict in its discovery duties not to do so, is based on speculation and is unsupported by the testimony. For all of these reasons, this Court finds that defendant's general approach to searching for and preserving emails relevant to this litigation failed to satisfy its discovery obligations, and it is ORDERED to supplement its production as articulated herein. C. Failure to Preserve and Search For Internet Histories Plaintiff contends that defendant took insufficient steps to identify and preserve the internet histories of Mr. Kohl and Ms. Cruser-Scott. [Doc. No. 35, p. 20] Plaintiff seeks these histories as support for its theory that defendant copied plaintiff's designs when creating the allegedly infringing Toledo jewelry line. While defendant concedes that designer Kim Cruser-Scott's internet history in late 2011 could theoretically contain relevant evidence (had she viewed plaintiff's products online during that time), defendant states that “her search history from that period simply does not exist and did not exist at the time [defendant] was placed on notice of [plaintiffs] claim (July 2012).” [Doc. No. 36, pp. 7-8] Further, defendant argues that, at no point in time is Mr. Kohl's history relevant, given his role as CEO and that he did not “create” any of the allegedly infringing designs. [Doc. No. 36, p. 7] The parties' experts appear to agree that it was unlikely that the relevant internet histories could have been recovered at the time the July 2012 cease-and-desist letter was received. Defendant's in-house IT Systems Administrator asserts that internet web browsers on defendant's computers, at a maximum, are programmed to retain internet histories for no more than 30 days. [Doc. No. 35-2, Caparas Decl., ¶ 8] Accepting defendant's position as true, plaintiff's expert states that there is a “possibility” that web histories “may remain on the hard drive beyond 30 days.” [Doc. No. 35-6, Cohen Decl., ¶ 3] According to plaintiff's expert, deleted histories, like all other deleted files, may remain on the hard drive in unallocated space until they are automatically overwritten by the computer. To recover such files generally requires the assistance of a forensics expert (or forensic software). Even with the help of a forensics expert, these files will eventually be overwritten and completely unrecoverable over time as the hard drive is used—those files most recently deleted are the most likely to be recoverable, and the probability of recovery diminishes as more and more data is written to the hard drive. [Doc. No. 35-6, ¶ 3] Essentially, plaintiff argues that because there was a possibility of recovering these histories, defendant's failure to immediately (upon receipt of the July 2012 letter) inspect the internet histories of Ms. Cruser-Scott and Mr. Kohl constituted discovery misconduct. This Court disagrees. When defendant received plaintiff's cease-and-desist letter in July 2012, roughly seven months had elapsed since the completion of defendant's design process at issue in this litigation. Given the testimony from defendant's Systems Administrator that such histories are retained for no more than 30 days, and plaintiff's expert's testimony that the process of harvesting deleted histories involves the assistance of forensic experts, it is unreasonable to expect defendant to go to such extraordinary measures to extract, and potentially recreate, the deleted information in July 2012. Further, given the dissipating nature of the histories at issue, it would be “exponentially more attenuated” to now allow, as of the date of this Order, plaintiff to “rummage through [defendant's] computers for information [plaintiff's] own expert confirms was almost certainly long gone even at the time of the cease and desist letter, and is certain to be gone now....” [Doc. No. 36, p. 8] *8 For all of these reasons, this Court finds that defendant's failure to preserve, pursue, or otherwise harvest deleted internet search histories was not a violation of its discovery obligations in this action. D. Failure to Search Backup Tapes Plaintiff argues that, given defendant's unwritten document retention policy, along with its heavy reliance on backup tapes as part of that “policy,” defendant had an affirmative duty to search its backup tapes for relevant emails regarding the design, creation, and approval of defendant's allegedly infringing Toledo line. Defendant argues that plaintiff never raised this issue during discovery. [Doc. No. 35, p. 38] Further, defendant cites Federal Rule of Civil Procedure 26(b)(2)(B) which holds 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). Defendant provides numerous citations to decisions outside of this District and outside of the Ninth Circuit as support for its statement that: “Courts routinely hold that parties are under no obligation to undertake the burdensome and expensive process of reconstructing documents from backup tapes (and often require the requesting party to pay for such a task where ordered).” [Doc. No. 35, pp. 38-39, citing Coverall N. Am., Inc. v. Verica, LLC, 2013 WL 1856518, *11 (D. Neb. May 2, 2013); Madere v. Compass Bank, 2011 WL 5155643, *2 (W.D. Tex. Oct. 28, 2011); Helmert v. Butterball, LLC, 2010 WL 2179180, *8 (E.D. Ark. May 27, 2010) (due to difficulties and expense in retrieving information, “data maintained on backup tapes is classified as inaccessible”).] Defendant argues that plaintiff “never requested that [defendant] search its backup tapes, never raised the issue during discovery, never ‘met and conferred’ on the issue, and never moved for an order requiring [defendant] to do so, presumably due to its concern over the cost-shifting that likely would have been ordered under Rule 26(b)(2)(B).” [Doc. No. 35, p. 39] Given the burden and expense involved in searching backup tapes, this Court would ordinarily find that defendant had no general, standing duty to mine for relevant information stored on its backup tapes, as such items were not reasonably accessible to defendant. Zubulake v. UBS Warburg LLC, 217 F.R.D. 309. 323 (S.D.N.Y. 2003) (finding that backup tapes are generally inaccessible). In this case, however, defendant's lack of a formal document retention policy, its failure to institute a policy or practice in response to this litigation, and the evidence discussed above demonstrating specific instances where defendant's stated policy, search, and production failed to capture key documents relevant to this litigation, this Court finds that the targeted searches of defendant's backup tapes ordered above are warranted at this juncture. Accordingly, defendant is ORDERED to conduct a targeted search of its backup tapes, at its cost, for items relevant to this action, within the timeframe and utilizing the search terms articulated in sections II(A)-(B), supra. III. CONCLUSION For the reasons stated above, plaintiff's request to compel forensic examinations of the computers (and the production of IP addresses) used by certain representatives of the defendant [Doc. No. 35] is DENIED. Whether this request is denied with or without prejudice is contingent upon the results of the search ordered herein. Thus, while good cause does not exist to order the requested forensic examinations, defendant is ORDEREDto search its backup tapes (1) for the three missing items identified in section II(A), supra; and, (2) utilizing the search protocol describe in section II(B), supra. In addition, defendant must search the Brighton email account assigned to Ms. Lynn Rosenthal (as well as the backup tapes), utilizing the same search protocol. Lastly, to the extent that defendant communicated with the manufacturer of the Toledo line, these communications are also subject to production, both from email and from backup tapes. As to the two missing promotional videos, defendant is instructed to both search its backup tapes and contact any third party involved in the creation of the same, as this Court deems such footage to be within the custody and control of defendant. Defendant will bear the costs associated with all of these additional searches. *9 Defendant must provide plaintiff with a written Declaration under penalty of perjury detailing the efforts made to locate the missing items. Defendant must include in this Declaration a statement that “to the best of [its] knowledge, information, and belief formed after a reasonable inquiry,” its production is “complete and correct.” FED.R.CIV.P. 26(g)(1)(A). Defendant must file this Declaration no later than June 30, 2014. To the extent that additional responsive items are located, plaintiff must produce them forthwith, on a rolling basis, with the supplemental production to be completed no later than June 30, 2014. Should the parties seek to file a renewed Joint Motion regarding forensic computer examinations following a review of this Declaration and the related production, they must jointly first contact the Chambers of the undersigned Magistrate Judge to discuss the results of this targeted search. IT IS SO ORDERED. Footnotes [1] In this Court's September 13, 2013 Order denying plaintiff's initial request without prejudice, defense counsel was admonished for failing to comply with the Chamber Rules of the undersigned Magistrate Judge. [Doc. No. 33, pp. 2-3, fn. 1] Specifically, the Court held: “It is unclear why this dispute was not filed as a Joint Motion.... In the future, should defendant refuse to participate in the joint filing of disputes absent good cause, defendant risks forfeiting its positions or arguments.”[Doc. No. 33 (citations omitted) ] While defendant fully participated in the joint filing of the renewed dispute presently before the Court, defendant offers explanation to justify its filing of a “Separate Opposition” on the same day. [2] The issue of IP addresses used by Mr. Kohl and Ms. Cruser-Scott to access the internet from 2010 to July 2012 was not formally raised in any prior discovery requests by plaintiff. Rather, from this Court's reading of the discovery requests to date and email correspondence between opposing counsel, as well as the declarations submitted in support of the instant Motion, it appears the IP address issue was raised by plaintiff as a possible alternative to the instant request for forensic computer examinations. While this Court questions whether this request is properly before it, for the same reasons the Court finds forensic computer examinations are not warranted, invasive searches based on IP addresses linked to Mr. Kohl and Ms. Cruser-Scott are also not warranted. [3] In addition, plaintiff presents the Court with a specific instance of defendant's alleged discovery violation in an unrelated case as evidence of defendant's propensity to commit discovery violations. The matter referenced is not presently Before this Court, the relevance of which is tenuous best. [4] Brighton's Rule 30(b)(6) designee testified that emails sent to or received from designers are maintained for five years either in their mailboxes or on backup tapes. [Doc. No. 36, pp. 4-5] It is evident, therefore, that defendant considers maintenance of emails on its backup tapes as part of its document preservation policy. [5] Crawford Civil Chamber Rule V(A) (“Timing of Motions: ... Unless otherwise ordered, discovery motions shall be filed no later than 45 days after the even giving rise to the dispute and only after counsel have met and conferred as described in Section ‘B’ below. The event giving rise to a discovery dispute is NOT the date on which counsel reach an impasse in meet and confer efforts. For written discovery, the event giving rise to the dispute is the service of an objection, answer, response, or the passage of a discovery due date without response or production....) (emphasis in original). [6] If such email communications are not recoverable, defendant still has access to and control of such communications and is obligated to request them from the manufacturer with metadata for production to plaintiff.