Benjamin BERGER, etc., Plaintiff, v. The HOME DEPOT USA, INC., et al., Defendants No. SA CV 10-678-SJO (PLAx) United States District Court, C.D. California, Southern Division Signed October 07, 2010 Counsel Matthew E. Hess, Los Angeles, CA, Richard H. Friedman, Friedman Rubin, Bremerton, WA, Taras Peter Kihiczak, Thomas Alistair Segal, The Kick Law Offices, Santa Monica, CA, for Plaintiff. Allan Edward Ceran, Burke Williams & Sorensen LLP, Matthew E. Hess, Los Angeles, CA, Jonathan R. Chally, S. Stewart Haskins, II, Zachary A. McEntyre, King & Spalding LLP, Atlanta, GA, for Defendants. Abrams, Paul L., United States Magistrate Judge ORDER RE: PLAINTIFF'S MOTION TO COMPEL SUPPLEMENTAL RESPONSES TO PLAINTIFF'S SECOND SET OF REQUESTS FOR PRODUCTION; REQUEST FOR EVIDENTIARY SANCTIONS AND FOR COSTS *1 Plaintiff in this action alleges that defendants have infringed California Unfair Competition law (Cal. Bus. & Prof. Code § 17200, et seq.) and other consumer protection laws due to the manner in which defendant Home Depot charges customers a 10% “damage waiver” surcharge for tool rental agreements. (See Joint Stipulation Regarding Plaintiff's Motion to Compel (“Joint Stip.”) at pp. 1-2; Declaration of Matthew E. Hess in Support of Motion to Compel (“Hess Decl.”) at ¶ 5, Exhibit 4 at ¶ 1). Specifically, plaintiff contends that Home Depot's damage waiver surcharge for tool rentals is optional, but that Home Depot's cash registers are programmed to automatically charge customers the surcharge whenever tools are rented. (Joint Stip. at pp. 1-2). Plaintiff further contends that in 2005, he rented a saw from a Home Depot tool rental center in Costa Mesa, California and paid the 10% damage waiver only because he did not know it was optional, and that had he known, he would not have paid for it. (Joint Stip. at p. 2). Plaintiff initiated this action in 2006. (Joint Stip. at p. 29). On August 11, 2009, plaintiff served his second set of discovery requests on defendant that sought documents and electronically stored information pertaining to communications regarding defendant's damage waiver. (See Hess Decl. at ¶ 3, Exhibit 2). Unsatisfied with defendant's responses, plaintiff has filed the instant Motion. The Court has concluded that oral argument will not be of material assistance in determining plaintiff's Motion. Accordingly, the hearing scheduled for October 12, 2010, is ordered off calendar (seeLocal Rule 7-15). In the challenged discovery requests, plaintiff seeks all documents and electronically stored information concerning all communications regarding the damage waiver, changes made to the waiver, customer complaints about the waiver, and disclosure of the waiver, between defendant's national headquarters and tool rental centers, defendant's national headquarters and regional headquarters (with responsibility for California), and defendant's regional headquarters (with responsibility for California) and tool rental centers in California; and all communications regarding defendant's damage waiver to or from six individuals currently and formerly employed by Home Depot. (See Joint Stip. at pp. 7, 43-60; Hess Decl., Exhibit 2). Plaintiff contends that defendant has failed to produce sufficient documentary and electronic information pertaining to its damage waiver because defendant: 1) did not institute a litigation hold or implement safeguards to prevent the destruction of discoverable evidence; 2) destroyed e-mail archives prior to 2005 containing discoverable information; and 3) has not in good faith searched and produced documents and electronic data pertinent to the damage waiver. (See Joint Stip. at p. 1; Plaintiff's Supplemental Memorandum at pp. 1-4). Plaintiff requests that the Court impose evidentiary presumptions and sanctions against defendant for spoliation of evidence; permit plaintiff's information technology expert to search defendant's computer systems at defendant's expense, or order defendant to conduct a second search of its computer system for the information sought and report the results and methodology used to the Court; and order defendant to pay plaintiff's costs in litigating this issue in the amount of $3,400. (See Joint Stip. at pp. 2-3, 25-28; Plaintiff's Supplemental Memorandum at p. 5). *2 In opposing the Motion, defendant raises a series of objections to plaintiff's second set of requests for production that the Court addresses in turn below. First, defendant objects to plaintiff's discovery requests as unduly burdensome because the requests are not limited to the relevant time period of this action, do not seek information pertaining to specific people or occurrences, and would require defendant to review all documents exchanged between current and former employees at its 118 stores in California. (See Joint Stip. at pp. 7, 44-61). Defendant's objection that the requests are overbroad and burdensome on these bases lacks substantiation. It is well-established that the burden is on the objecting party to show grounds for failing to provide the requested discovery. See, e.g., Smith v. B & O Railroad Co., 473 F.Supp. 572, 585 (D. Md. 1979); Sherman Park Community Ass'n v. Wauwatosa Realty, 486 F.Supp. 838, 845 (E.D. Wis. 1980); Laufman v. Oakley Building & Loan Co., 72 F.R.D. 116, 121 (S.D. Ohio 1976). Defendant cannot simply invoke generalized objections; rather, with respect to plaintiff's discovery requests, defendant must show specifically how, despite the broad and liberal construction afforded the federal discovery rules, each [request] is not relevant or how each [request] is overly broad, burdensome or oppressive by submitting affidavits or offering evidence revealing the nature of the burden. Roesberg v. Johns-Manville Corp., 85 F.R.D. 292, 296-97 (E.D. Pa. 1980)(citations omitted); Wirtz v. Capitol Air Service, Inc., 42 F.R.D. 641, 643 (D. Kan. 1967). For a burdensomeness argument to be sufficiently specific to prevail, it must be based on affidavits or other evidence showing the exact nature of the burden. Kansas-Nebraska Natural Gas v. Marathon Oil Co., 109 F.R.D. 12, 24 (D. Neb. 1983) (party objecting to production requests must specify why the requests are objectionable); Roesberg, 85 F.R.D. at 296-97. Defendant's objections of burdensomeness are insufficient.[1] Similarly, defendant's general objection to the requests as not relevant to this action is unavailing. (See Joint Stip. at pp. 7, 44-61). Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, discovery is permitted of “any nonprivileged matter that is relevant to any party's claim or defense.” Generally, Rule 26(b) is to be “liberally interpreted to permit wide-ranging discovery of information,” even if that information is not ultimately admitted at trial. See Comcast of Los Angeles, Inc. v. Top End International, Inc., 2003 WL 22251149, at *2 (C.D. Cal. July 2, 2003); see also Fed.R.Civ.P. 26(b)(1) (“Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.”). Here, the burden is on defendant, as the party resisting discovery, to show that discovery should not be allowed (Comcast, 2003 WL 22251149, at *2 (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975))); it is not up to defendant to decide what plaintiff needs to litigate this action. Neither is it the role of the Court in ruling on the instant Motion to determine what evidence the District Judge will actually allow in at a trial in this case. See, e.g., Colonial Life & Accident Insur. Co. v. Superior Court of Los Angeles County, 31 Cal.3d 785, 791 n. 8 (1982) (quoting Pacific Tel. & Tel. Co. v. Superior Court, 2 Cal.3d 161, 172-73 (1970)(“[Courts] may appropriately give the applicant [for discovery] substantial leeway, especially when the precise issues of the litigation of the governing legal standards are not clearly established [citation]; a decision of relevance for purposes of discovery is in no sense a determination of relevance for purposes of trial.”) (brackets in original)). As plaintiff's discovery requests only seek information relevant to the damage waiver, defendant has failed to show that any information requested by plaintiff is irrelevant. *3 Next, defendant's objection that plaintiff's production requests are vague and ambiguous due to the undefined terms “communications,” “headquarters,” and “tool rental centers” (see Joint Stip. at pp. 7, 44-61), is also overruled. While the Court recognizes that in some instances a discovery request may be so vague or ambiguous as to not allow a response (see, e.g., Dubin v. E.F. Hutton Group Inc., 125 F.R.D. 372, 376 (S.D.N.Y. 1989)), such is not the case here. Rather, the Court finds that the terms used by plaintiff in his discovery requests are not presented in a vague or ambiguous manner, and can readily be responded to using the common and ordinary meanings of those terms. They do not involve matters of opinion, are not dependent on subjective standards of measurement, and provide a reasonably clear indication of the information being sought. In order to aid the quest for relevant information, the parties should not seek to evade disclosure by quibbling and objection. Defendant also objects to plaintiff's discovery requests to the extent plaintiff seeks disclosure of information protected by the attorney-client privilege and attorney work product doctrine. (See Joint Stip. at pp. 7, 44-61). An entity that withholds discovery materials based on a privilege must provide sufficient information (i.e., a privilege log) to enable the requesting party to evaluate the applicability of the privilege or other protection. Fed.R.Civ.P. 26(b)(5); see Clarke v. American Commerce Nat'l Bank, 974 F.2d 127, 129 (9th Cir. 1992). Failure to provide sufficient information may constitute a waiver of the privilege. See Eureka Financial Corp. v. Hartford Acc. & Indem. Co., 136 F.R.D. 179, 182-83 (E.D. Cal. 1991) (a “blanket objection” to each document on the ground of attorney-client privilege with no further description is clearly insufficient); Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984) (attorney-client privilege waived when defendant did not make a timely and sufficient showing that the documents were protected by privilege). The attorney-client privilege applies only when “(1) legal advice is sought (2) from a professional legal advisor in his capacity as such, and (3) the communications relating to that purpose (4) are made in confidence (5) by the client.” Griffith v. Davis, 161 F.R.D. 687, 694 (C.D. Cal. 1995). Here, defendant has set forth no evidence establishing that counsel was contacted for the purpose of providing legal advice about the information to which it is objecting, and has failed to produce a privilege log identifying the documents and electronic information withheld subject to this privilege. Thus, the purpose of the privilege—to protect disclosures necessary to obtain informed legal advice and to encourage “full and frank disclosure by the client to his or her attorney”—has not been shown to be implicated here. Clarke, 974 F.2d at 129. Neither can the Court conclude that the work product doctrine protects any of the requested documents or information. Rule 26(b)(3) of the Federal Rules of Civil Procedure may “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney ... concerning the litigation.” The work product doctrine “is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategy ‘with an eye toward litigation,’ free from unnecessary intrusion by his adversaries.” United States v. Adlman, 134 F.3d 1194, 1196 (2nd Cir. 1998) (quoting Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947)). Furthermore, “[t]o be entitled to the protection of the work product rule, the material must have been generated in preparation for litigation. The prospect of future litigation is insufficient.” Whitman v. United States, 108 F.R.D. 5, 9 (D. N.H. 1985). Absent a showing by defendant that any information not produced to plaintiff was generated in preparation of litigation, this doctrine does not shield the requested information. Accordingly, defendant is ordered to produce a detailed privilege log as to those documents and information, if any, that it is withholding based on its assertion of the attorney-client privilege and/or work-product doctrine. *4 In any event, in spite of the objections raised, defendant contends that it has already produced all information relevant to plaintiff's instant requests for production, and that it “is unaware of any documents withheld pursuant to its objections” discussed above. (Joint Stip. at pp. 8, 32-35). Defendant represents that after litigation concerning its damage waiver (unrelated to this action) was initiated, defendant in 2003 implemented a litigation hold to preserve electronic and hard copy information and documents relevant to defendant's tool rental damage waiver by “demanding that employees likely to have documents relevant to [the damage waiver litigation] identify, preserve, collect, and produce to Home Depot's legal team any documents regarding the damage waiver;” and that thereafter it consistently monitored the damage waiver litigation hold. (Joint Stip. at pp. 4, 29-32; Defendant's Memorandum of Law in Opposition to Plaintiff's Motion to Compel (“Defendant's Memo”) at p. 2). Specifically, defendant presents the declaration of James C. Snyder, Jr., former Home Depot Vice President and Assistant General Counsel for Legal and Risk Management, who was employed by Home Depot from August 2001 to January 2009. (Sohn Decl., Exhibit A at ¶ 1). Mr. Snyder declared that on or about May 12, 2003, he met with Tom McCormick, then the Director of Tool Rental for Home Depot, and outside counsel to discuss documents and sources of information (including, among other things, e-mails, standard operating procedures, financial reports, and information about customer complaints) relevant to the damage waiver litigation; the steps defendant should take to preserve this information; and which Home Depot employees could help obtain the documents, data, and information relevant to the damage waivers. (Sohn Decl., Exhibit A at ¶ 5). Mr. Snyder further declared that on or about May 21, 2003, he and outside counsel met with David Ford, who was at the time defendant's Manager of Information Systems for the Tool Rental Department, to discuss how defendant's tool rental data was organized and stored and how best to preserve such data, and to instruct him not to purge any tool rental data related to the damage waiver. (Sohn Decl., Exhibit A at ¶ 6). Mr. Snyder further declared that he directed outside counsel and members of defendant's legal department to meet with other Home Depot tool rental employees to obtain further information and preserve damage waiver documents, data, and information. (Sohn Decl., Exhibit A at ¶ 7). He also declared that in 2003, an e-mail was distributed to tool rental employees informing them of the litigation hold and instructing them to preserve documents and electronic information relevant to the damage waiver; that in response to this e-mail, employees searched for relevant information on their hard drives, e-mails, shared drives, servers, and in hard copy documents; that time to time employees were reminded of their duties to preserve, collect, and forward to defendant's legal department all damage waiver information; and that he received damage waiver information sent to the legal department by employees. (Sohn Decl., Exhibit A at ¶¶ 8-11). Mr. Snyder's declaration is supported by Mr. McCormick's deposition testimony that he met with Mr. Snyder in 2003 regarding collection of documents related to the damage waiver litigation, that he provided defendant's legal department any documents in his possession relevant to the damage waiver, and that pursuant to his instruction, employees in defendant's tool rental department also collected and sent to the legal department information pertaining to the damage waiver. (Sohn Decl., Exhibit B at pp. 16-18). Further supporting defendant's contention that it preserved all damage waiver information relevant to this action are the declarations of Daniel McAreavey, defendant's former tool rental department employee from 1997-2006 who held the position of Director of Tool Rental from 2004-2006; Gary Lewis, who has been an employee with defendant's tool rental department since 1998, including holding the position of Senior Manager for Tool Rental Operations from 2004-2007; William P. Barnette, Home Depot Counsel responsible for the defense of certain tool rental damage waiver litigation since 2004; and Nadine Aguado, who from January 2005 to January 2009 oversaw defendant's tool rental locations in the Pacific South Region as a Tool Rental Operations Manager. (See Sohn Decl., Exhibits C, D, E, G). All of these declarants declare under penalty of perjury that in 2003, defendant instructed tool rental employees to search for (on hard drives, e-mails, shared drives, servers, and in hard copy files), collect, preserve, and forward to defendant's legal department all information (electronic or otherwise) pertinent to the tool rental damage waiver, and that from time to time tool rental employees received reminders and attended meetings concerning the collection and preservation of damage waiver information pursuant to defendant's litigation hold. (SeeSohn Decl., Exhibits C, D, E, G; see also Sohn Decl., Exhibit F at pp. 37-49 (affidavits from defendant's tool rental employees that they searched for damage waiver information on hard drives, e-mails, shared drives, servers, and hard copy documents)). Each of these declarants and affiants also stated under penalty of perjury that all electronic records and hard-copy documents pertaining to defendant's damage waiver that were collected and preserved pursuant to the litigation hold were sent to defendant's legal department. (Sohn Decl., Exhibits C, D, E, F, G). Plaintiff contends that defendant has not produced any documents concerning its document retention policy. (See Plaintiff's Supplemental Memorandum at p. 3). The Court observes that several of defendant's declarants, including Mr. Snyder (Sohn Decl., Exhibit A at ¶¶ 8-9), Mr. McAreavey (Sohn Decl., Exhibit C at ¶ 3), Mr. Lewis (Sohn Decl., Exhibit D at ¶¶ 3, 10), Mr. Barnette (Sohn Decl., Exhibit E at ¶¶ 3-4, 8), and Mr. Gregory (Sohn Decl., Exhibit I at ¶ 5), declare that defendant sent out written notices and memoranda pertaining to its litigation hold. Defendant is ordered to produce to plaintiff all available nonprivileged information pertaining to its data retention policy (including any written litigation hold notices and memoranda). If defendant contends that any such documents are privileged, they must be specifically reflected on defendant's privilege log. To the extent defendant concludes that it is not in possession, custody, or control of any such records, it is ordered to produce a declaration signed under penalty of perjury by one of defendant's corporate officers explaining the specific efforts and methods used to locate these records. *5 Next, defendant contends that in addition to the information collected and preserved pursuant to its damage waiver litigation hold, after an April 27, 2010, teleconference between, among other participants, defendant's IT staff and plaintiff's technology expert, defendant voluntarily conducted an additional search of its hard drives, e-mail in-boxes, personal and shared network space, intranet, and shared group space and document management systems used by defendant's tool rental department, by performing keyword searches of these electronic systems using search terms like “Damage waiver,” “Damage protection,” and “DW.” (See Joint Stip. at p. 34; Sohn Decl. at ¶ 5; Defendant's Memo at pp. 4-5). Defendant represents that pursuant to its litigation hold and 2010 keyword searches, it has already thoroughly searched and produced all information responsive to plaintiff's request for production (including memoranda, training documents, standard operating procedures, and tool rental revenue data[2]) and that “[n]one of this material has been withheld and certainly none of it has been destroyed.” (Joint Stip. at pp. 4-5, 32-34). Defendant asserts that it has even offered plaintiff the opportunity to search its existing disaster recovery tapes to satisfy plaintiff that there is nothing more to produce (on the condition that plaintiff bear the cost of such a search (see fn. 1, supra)), but that plaintiff has refused defendant's offer. (Joint Stip. at pp. 4, 34, 41; Sohn Decl., Exhibit H at p. 1). Defendant also asserts that although all disaster recovery e-mail archives prior to May 2005 have been recycled, pursuant to Home Depot's data retention policy, defendant has retained all disaster recovery tapes dated after May 2005. (Joint Stip. at p. 39; Sohn Decl. at ¶ 3, Exhibit E at ¶ 12, Exhibit L at ¶¶ 3-8; Defendant's Memo at pp. 3-4). Moreover, defendant contends that in accordance with its litigation hold, it preserved, and later produced to plaintiff, all information relevant to its damage waiver that may have existed in its recycled e-mail archives. (Joint Stip. at pp. 39, 41). Plaintiff has failed to show why the Court should find inadequate defendant's contention that it has already produced all information responsive to plaintiff's second set of requests for production. First, the Court is not persuaded that Home Depot's Director of Tool Rental, Gaven Gregory, “admitted that Home Depot has never put a litigation hold into place.” (Joint Stip. at pp. 10-11; see also Plaintiff's Supplemental Memorandum at p. 1). Specifically, plaintiff cites a portion of Mr. Gregory's deposition testimony in which he stated that he did not know whether a litigation hold had ever been put in place in this case; did not know what the term “litigation hold” meant; and had not been asked to retain documents that might be used as evidence in a lawsuit, including in this action. (SeeJoint Stip. at p. 11; Hess Decl. at ¶¶ 8, 22-23, Exhibit 7). Defendant explains that Mr. Gregory was appointed Director of Tool Rental in January 2010, only two months before his deposition; that he had never worked in defendant's tool rental department prior to that time; and that he was not designated a person most qualified to discuss defendant's collection of documents at his deposition. (See Joint Stip. at p. 35; Sohn Decl., Exhibit I at ¶¶ 1, 4). Defendant also points to a different portion of Mr. Gregory's same deposition in which he asserted that Home Depot's counsel asked him to provide counsel with documents relevant to this case, as well as to the deposition testimony of Jim Summers, Mr. Gregory's predecessor, who testified that defendant's tool department employees were required to send damage waiver information to Home Depot's counsel. (See Joint Stip. at pp. 36-37; Sohn Decl., Exhibits J, K). Finally, Mr. Gregory explains in his declaration that after his deposition, he was fully informed about defendant's damage waiver litigation hold and that it was his understanding that tool rental employees had complied with the hold. (Sohn Decl., Exhibit I at ¶ 5). Given the numerous declarations, affidavits, and deposition testimony provided by defendant's tool rental employees indicating that defendant has had a litigation hold collecting and preserving damage waiver information since 2003 (see Sohn Decl., Exhibits A, B, C, D, E, F, G, I, K), and the innocent explanation provided by defendant that Mr. Gregory was unfamiliar with the litigation hold at the time of his deposition because he was new to his job (see Sohn Decl., Exhibit I at ¶¶ 1, 4), the Court concludes that the evidence shows that defendant implemented and monitored its damage waiver litigation hold relevant to this case. *6 Next, the Court further concludes that the evidence does not show that defendant's actions in recycling some of its disaster recovery tapes resulted in the spoliation of evidence, as plaintiff contends. “Spoliation of evidence is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence, in pending or future litigation.” Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 649 (9th Cir. 2009) (internal quotations and citation omitted); see also Silvestri v. General Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001) (“The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.”) (citing Kronisch v. United States, 150 F.3d 112, 126 (2nd Cir. 1998)). Even if defendant's involvement in other damage waiver litigation similar to this action prompted its duty to preserve information concerning its tool rental damage waiver before plaintiff filed his complaint in this case, defendant did not cause spoliation of evidence by recycling some of its disaster recovery tapes. “[A] corporation, upon recognizing the threat of litigation, [need not] preserve every shred of paper, every e-mail or electronic document, and every backup tape.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (citing Concord Boat Corp. v. Brunswick Corp., 1997 WL 33352759, at *4 (E.D. Ark. Aug. 29, 1997) (“to hold that a corporation is under a duty to preserve all e-mail potentially relevant to any future litigation would be tantamount to holding that the corporation must preserve all e-mail,” which “should not be required” due to the “staggering” storage expense of such a requirement)). Rather, once litigation is reasonably anticipated, a party (or anticipated party) must put in place a “litigation hold” to preserve all potentially discoverable information, and, pursuant to that hold, the party “must retain all relevant documents (but not multiple identical copies) in existence at the time the duty to preserve attaches, and any relevant documents created thereafter. In recognition of the fact that there are many ways to manage electronic data, litigants are free to choose how this task is accomplished.... Presumably there are a multitude of ... ways to achieve the same result.” Zubulake, 220 F.R.D. at 218. As explained above, defendant has submitted multiple sworn declarations indicating that since 2003 (i.e., three years before plaintiff initiated this action), defendant implemented a litigation hold to preserve all electronic and hard-copy information pertinent to Home Depot's tool rental damage waiver by requiring tool rental employees to search for, collect, and preserve all electronic and hard copy information pertinent to the damage waiver, and that it has consistently monitored the litigation hold by reminding employees and holding meetings concerning the progress of the hold. The Court finds defendant's litigation hold method sufficient, as it was one of a multitude of ways in which defendant could have properly satisfied its obligation to retain discoverable information in this action. Moreover, as a general rule, a party's duty to retain discoverable information pursuant to a litigation hold “does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company's policy.” Zubulake, 220 F.R.D. at 218. Accordingly, defendant's actions in recycling its disaster recovery tapes, pursuant to its data retention policy, prior to May 2005 did not constitute spoliation. See, e.g., Oxford House, Inc., 2007 WL 1246200, at *2-4 (concluding that a defendant had no duty to retain electronic information stored on disaster recovery tapes for a time period prior to when the defendant had notice of the plaintiff's pending litigation). Furthermore, defendant's preservation of and offer to allow plaintiff to search its disaster recovery tapes for the time period dated after May 2005 demonstrates defendant's good faith effort to comply with its duty to maintain a litigation hold and provide plaintiff access to discoverable information in this action. *7 Next, the Court concludes that plaintiff has failed to show that defendant did not exercise good faith in responding to plaintiff's request to produce electronic and hard copy information pertinent to Home Depot's damage waivers. Plaintiff explains that prior to August 2010, defendant had only produced 1,100 pages of documents and two CDs of financial data, and that none of this information included e-mails or any other form of electronic information.[3] (See Joint Stip. at p. 20; Hess Decl. at ¶ 34). Plaintiff further contends that in August 2010, defendant produced approximately 11,500 Bates-numbered pages of electronic records, but that most of the information produced was “utterly irrelevant” to this action. (Joint Stip. at pp. 22-24; Hess Decl. at ¶¶ 39-46). Specifically, plaintiff asserts that defendant produced no e-mails from 2002 to 2004, one e-mail from 2005, one e-mail from 2006, no e-mails from 2007, and 20 e-mails from 2008, and that no information was provided explaining why Home Depot changed the language and format of its damage waiver in 2005 and 2006. (Joint Stip. at pp. 23-24; Hess Decl. at ¶¶ 14-16, 46-47, Exhibits 13-15). Plaintiff also characterizes the declaration of David Benton, Lead Systems Engineer of Home Depot, in which Mr. Benton describes a recent search of Home Depot's electronic data to comply with plaintiff's request for electronic discovery, as “a hopelessly vague pleading” insufficient to show that defendant conducted a discovery search in good faith. (See Joint Stip. at pp. 23; Hess Decl. at ¶ 19, Exhibit 18). The Court will accept defendant's representation in the Joint Stipulation that it has already produced to plaintiff all nonprivileged documents and electronic information pertaining to its damage waiver in its possession, custody, or control, upon submission of a declaration signed under penalty of perjury by one of defendant's corporate officers declaring this representation to be true. Assuming that defendant is able to produce such a declaration, the Court concludes that the declarations of defendant's current and former tool rental employees, counsel, and IT staff submitted under penalty of perjury, coupled with defendant's representation in the Joint Stipulation that there is no additional damage waiver information left to produce, establish that defendant has made a good faith effort to respond to plaintiff's requests for production in this case (i.e., first by submitting documents acquired from its litigation hold, and then by conducting additional keyword searches of its electronic data drives, network spaces, and e-mail in-boxes). “Under ordinary circumstances, a party's good faith averment that the items sought simply do not exist, or are not in his possession, custody, or control, should resolve the issue of failure of production since one ‘cannot be required to produce the impossible.’ ” Zervos v. S. S. Sam Houston, 79 F.R.D. 593, 595 (S.D.N.Y. 1978) (quoting LaChemise Lacoste v. Alligator Co., 60 F.R.D. 164, 172 (D. Del. 1973)). Additionally, defendant has presented evidence explaining why it has produced so few e-mails pertaining to its tool rental damage waiver in this case. Specifically, one of defendant's tool rental employees, Gary Lewis, declared that prior to August 2010, all in-store tool rental associates did not have Home Depot e-mail accounts. Instead, Mr. Lewis explained that all written communications were transported via Home Depot's intranet system, “My Apron,” and that all such communications relevant to the data waiver were sent to defendant's legal department. (See Sohn Decl., Exhibit D at ¶ 7). Further, some of defendant's tool rental employees, including Mr. McCormick, Mr. McAreavey, Mr. Lewis, Ms. Aguado, Mr. Gregory, and Mr. Summers, declared and/or offered deposition testimony that they did not forward any e-mails concerning tool rental damage waivers to defendant's legal department pursuant to the litigation hold because they simply had never sent or received any e-mails pertaining to this topic. (See Sohn Decl., Exhibits B at pp. 14-15, C at ¶ 8, D at ¶ 6, G at ¶ 4, I at ¶ 3, K at p. 70). Because plaintiff has not “point[ed] to any specific evidence suggesting that additional responsive documents exist and have not been produced” (despite the evidence presented by defendant that it has fully complied with the production requests and that there is nothing left to produce), his suspicion that defendant has failed to fully comply with his requests for production is insufficient to warrant an order compelling further discovery or sanctions in this case. Margel v. E.G.L. Gem Lab Ltd., 2008 WL 2224288, at *3 (S.D.N.Y. May 29, 2008) (noting that “[l]itigants commonly suspect that they are not getting all the documents they have requested and that an adversary is holding something back,” but that such a suspicion “will not sustain the imposition of sanctions”); Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 427 (D. N.J. 2009) (a party's “conclusory allegation premised on nefarious speculation” that it “has not received all of the documents to which it is entitled” is not enough “to grant burdensome discovery requests late in the game”). *8 Accordingly, defendant's averment, supported by declarations, affidavits, and deposition testimony, that there are no more damage waiver documents or electronic information left to find or produce to plaintiff resolves plaintiff's complaint of failure of production in this matter. SeeZervos, 79 F.R.D. at 595. CONCLUSION Plaintiff's Motion to Compel Supplemental Responses to his requests for production, including his requests for evidentiary presumptions, sanctions, and costs, is denied. However, not later than October 15, 2010, defendant is ordered to produce: 1) a detailed privilege log of any documents withheld pursuant to the attorney-client privilege and/or the work product doctrine; 2) all nonprivileged documents concerning its document retention policy, including any written litigation hold notices and memoranda, or, if such documents are not in its possession, custody, or control, a declaration signed under penalty of perjury by a corporate officer detailing the methods used to locate such documents; and 3) a declaration signed under penalty of perjury by a corporate officer verifying defendant's representation in the Joint Stipulation that it has already produced to plaintiff all nonprivileged documents and electronic information in its possession, custody, or control concerning its damage waiver. Further, to the extent plaintiff wants to access defendant's available disaster recovery tapes at his own expense, he must so notify defendant no later than October 15, 2010. Defendant must then provide plaintiff with access to the tapes no later than October 22, 2010. IT IS SO ORDERED. Footnotes [1] However, to the extent plaintiff requests that defendant bear the cost of examining the data contained on defendant's available disaster recovery tapes, the Court finds that defendant has shown this request to be overly burdensome. Defendant declares that these tapes were only used to restore its systems in the event of a disaster and were not used, or intended to be used, as an information retrieval or data archive. (Declaration of Edward Sohn (“Sohn Decl.”), Exhibit L at ¶ 8). Defendant further declares that to conduct a full restoration of its available disaster recovery tapes would cost over $7 million, exclusive of hosting fees and costs to search the data and maintain a restore environment. (Sohn Decl., Exhibit L at ¶ 9). The Court finds this expense unreasonably burdensome, especially because defendant has presented sufficient evidence, discussed below, that it used other methods to preserve the damage waiver evidence relevant to this case. See Oxford House, Inc. v. City of Topeka, Kansas, 2007 WL 1246200, at *4-5 (D. Kan. April 27, 2007) (finding unduly burdensome and costly a discovery request for a defendant to retrieve electronic information off its disaster recovery tapes, which would cost upwards of $100,000). [2] Defendant represents that this data includes “a massive database, consisting of millions of records, that contained the transactional data for all tool rentals in California from 2002 through 2009,” which was available for production only because of defendant's damage waiver litigation hold. (Joint Stip. at pp. 33-34). That is, had there not been a litigation hold, these documents would not exist. [3] Defendant asserts that its initial document productions included electronic documents and data, although some of these documents were produced in hard copy format, and that plaintiff never objected to the format of defendant's document production. (See Joint Stip. at p. 33).