I recently described the nature of plaintiffs’ allegations in my Memorandum Opinion denying defendants’ motion to bifurcate discovery into merits and class certification issues. In re Rail Freight Fuel Surcharge Antitrust Litig., — F.R.D. —, No. 07-MC-489, 2009 WL 190433, at *1 (D.D.C. July 2, 2009). Suffice it to say here, that plaintiffs allege that in 2003, defendants, who control 90% of all rail freight traffic in the United States, sought to increase their revenues by the use of fuel surcharges upon their customers’ shipments. See In re Rail Freight Fuel Surcharge Antitrust Litig., 587 F. Supp. 2d 27, 29-30 (D.D.C. 2008). In addition to other tactics, plaintiffs charged that the defendants conspired to remove fuel surcharges from an index that was almost universally used to calculate shipping rates so that they could use a separate fuel surcharge. In his opinion, just cited, Judge Friedman then explained what plaintiffs say happened next:

Id. at 30-31.

Since plaintiffs’ allegations were premised on events that occurred in 2003, plaintiffs asserted a class period of July 1, 2003 to at least June 30, 2007. Consolidated Amended Complaint [#92] ¶¶ 1, 38. It is well settled that the “temporal scope of discovery should not be confined to the limitations period of the antitrust statutes, or to the damage period, and plaintiff is ordinarily permitted to discover defendant’s activities for a reasonable period of time antedating the earliest possible date of the actionable wrong.”Arvco Cont. Corp. v. Weyerhaeuser Co., No. 08-CV-548, 2009 WL 311125, at *4 (W.D. Mich. Feb. 9, 2009) (internal citations omitted); see also B-S Steel of Kan., Inc. v. Tex. Indus., Inc., No. 01-CV-2410, 2003 WL 21639019, at *3 (D. Kan. July 22, 2003) (“The general policy of allowing liberal discovery in antitrust cases has been permitted by courts when there are allegations of conspiracy and where broad discovery may be needed to uncover evidence of insidious design, pattern, or intent.”) (internal quotations omitted); Am. Health Sys., Inc. v. Liberty Health Sys., No. 90-CV-3112, 1991 WL 30726, at *3 (E.D. Pa. Mar. 5, 1991). Accordingly, the parties agreed to a preservation order in a related state court case that covered documents and electronically stored information that were created or received between May 1, 2001 and November 15, 2007, i.e. two years and two months before the class period commenced on July 1, 2003. Exh. B to Defendants’ Memorandum Concerning Start Date for Discovery [#283] (“Defs. Mem.”).

*2 At first glance, it appears that the starting point for discovery in this case should be coterminous with the preservation agreement and therefore begin on May 1, 2001. However, plaintiffs note that in arguing their motion to dismiss before Judge Friedman, defendants insisted that there had been a long history of rate-based fuel charges in this industry so that the rise in rates in 2003 occurred naturally, along a historic continuum, and could not be proof of a conspiratorial intent even if the defendants’ actions in raising rates were simultaneous. In their arguments, defendants pointed, for example, to websites that showed that one defendant had implemented a surcharge early in 2000 and a second in October, 2000. Plaintiffs insist that they must have discovery dating back to 2000 to prove that events in 2003 were a sudden and sharp break with the past -- indicative of a conspiratorial intent -- and to rebut defendants’ assertions that there was nothing unusual about what occurred in 2003, when it is compared with what occurred in earlier years, such as 2000.

For their part, defendants point out that it was plaintiffs who charged the significance of the 2003 events in their complaint and who agreed to the 2001 preservation date, knowing full well that the preservation obligation is almost always greater than the actual discovery production obligation. They insist that counsel’s references to pre-2001 information on public websites cannot possibly justify having to search an additional 16 months worth of electronically stored information, particularly when its actual relevance is questionable. To them, a two year window predating the class period and the publicly available information makes the May 1, 2001 start date sufficient to do a “before and after” analysis that could provide circumstantial evidence of a conspiratorial intent.

The difference between the parties is, as always, at the margin. SeeMcPeek v. Ashcroft, 202 F.R.D. 31, 34 (D.D.C. 2001). Resolving the issue requires the Court to balance likely benefit against burden and expense “considering the needs of the case, the amount in controversy, the parties’ resources, and the importance of the discovery in resolving the issues [in the case].” Fed. R. Civ. P. 26(b)(2)(iii); see also Covad Comms. Co. v. Revonet, Inc., — F.R.D. —, No. 06-CV-1982, 2009 WL 147234, at *6 (D.D.C. May 27, 2009).

In this case the amount in controversy is substantial and the parties appear to have equal resources to prosecute and defend it. Thus, the crucial questions are the needs of the case and the importance of the discovery.

In one sense, the defendants have the solution in their own hands. Under Rule 26(a)(1)(ii), the defendants are required to produce any evidence they will rely on to support their defenses as part of their initial disclosures. SeeFed. R. Civ. P. 26(a)(1)(ii) (a party is obliged to produce in its initial disclosures “electronically stored information ... that the disclosing party may use to support its claims or defenses.”). If they continue to defend the 2003 rate increases by saying they are normal considering the history of the industry, then they must produce the evidence that supports that defense, including evidence of the 2000 rate increases if they intend to use that evidence.

Regarding additional evidence from the year 2000, that the defendants presently do not intend to use, it is also true that the production of even relevant evidence in discovery is subject to the balancing requirements of Rule 26(b)(2)(iii). Therefore the question of the burden presented by the additional search arises. Commendably, the parties attempted to arrive at a compromise whereby plaintiffs would be satisfied with what the defendants describe as “discovery prior to May 2001 to the circumstances surrounding Defendants’ fuel surcharge program.” Defs. Mem. at 6 n.2. But, defendants counter that this would still require a detailed search for the documents as defined by plaintiffs’ Request for Production to include “documents concerning the implementation and operation” of the fuel surcharge programs, communications about the programs and analyses of “existing or potential” programs, as well as “sales transactional data.” Id. (quoting Exh. D to Defs. Mem.).

*3 Plaintiffs downplay the burden imposed, pointing out that in an electronic discovery universe expanding a search slightly is hardly all that burdensome. Defendants counter that it will be particularly burdensome because so much time has gone by since the pertinent electronically stored information was created. Without actually examining the pertinent systems and attempting to find the data, it is impossible to predict with accuracy how burdensome an incremental increase in the search will be. It has, however, been the experience of the bench and bar that the older the data the greater the likelihood that the search will be more expensive because the systems that created the data may no longer work, the data has been corrupted, or preserved on devices that are now obsolete. Hence, the distinction drawn in the 2006 amendment to the Federal Rules of Civil Procedure between data that is reasonably accessible and data that is not. Fed. R. Civ. P. 26(b)(2)(B); see also Zubulake v. UBS Warburg (“Zubulake I”), 217 F.R.D. 309, 321-22 (S.D.N.Y. 2003); The Sedona Conference Commentary on Preservation, Management and Identification of Sources of Information that are Not Reasonably Accessible (2008), (hereafter “Commentary”) at 9, available athttp://www.thesedonaconference.org/content/miscFiles/publications_html?grp=wgs110. Thus, increasing the temporal scope of discovery to January 1, 2000 without limitation may create some demanding new challenges. In my view, the possibility of such challenges and the need to strike a fair balance between burden and utility justifies extending the search to 2000 but narrowing its scope to the evidence on which the parties will rely to prove or rebut that the increase in rates in the year 2003 were aberrational, upon a continuum of increases that could be expected given the history of this industry. Accordingly, I will limit defendants to the obligation to produce documents and electronically stored information generated and created in the period of January 1, 2000 to April 30, 2001 that either (1) will be relied upon by defendants at trial; (2) is likely to be given to an expert for review; or (3) that would otherwise pertain, relate to or evidence (a) discussions pertaining to rate increases in that period of time, whether imposed or not; or (b) the actual imposition of such rate increases.

Finally, with regard to the availability of information, plaintiffs concede that the defendants have not been under an obligation to preserve information predating May 2001 for this litigation. Thus I expect a good deal of information from that time period may be lost now, or only recoverable by resort to back-ups or through forensic searching. I will not require the defendants to produce anything predating May 2001 that is not active on-line data, as that term is defined in Zubulake I, 217 F.R.D. at 318 and the Commentary at 10. Plaintiffs appear to concede the reasonableness of this point in their briefs by stating that they are aware that a good deal of items will have been lost already because of the defendants’ reasonable reliance on the New Jersey agreement. Depending on the yield from the search I am authorizing, I will consider increasing the scope of the search to “near line data” and “offline storage archives” as those terms are defined in Zubulake Iand the Commentary just cited upon application of the plaintiffs to which the defendants will, of course, be permitted to respond.

I also expect defendant to produce the materials I have described from any hard copy files they have.

Document Request No. 67 of Plaintiffs’ Request for Documents demands production of the calendars and expense reports of “officers, directors and other executives with responsibility for your Rail Freight Transportation Services business.” Plaintiffs’ (1) Reply Memorandum in Support of January 1, 2009 as the Start Date of the Discovery Period for Documents and Electronically Stored Information and (2) Memorandum in Support of the Production of Calendar and Expense Report Information [#288] (“Pls. Reply”) at 6.

Once again counsel for the parties have commendably attempted to resolve their dispute by plaintiffs agreeing that the calendars be provided only for those employees who will be production custodians in this case and to the redaction of what plaintiffs call “purely personal information.” Defendants counter by agreeing to produce only the information for vice-presidents who head business groups and their superiors and only as to contacts among the defendants representing trade association meetings, and internal meetings concerning fuel surcharges. Defendants’ Reply Memorandum Concerning Start Date for Discovery and Plaintiffs’ Request for Calendar Entries and Expense Reports [#289] (“Defs. Reply”) at 10-11. Defendants also insist on the right to first redact information that is not “relevant to any claims or defenses in this case.” Id. at 13.

Thus, the parties differ as to whose entries must be produced and the circumstances under which information can be redacted.

Evidence of meetings among alleged conspirators may be probative of a conspiratorial intent. See City of Moundridge v. Exxon Mobile Corp., 429 F. Supp. 2d 117, 131 (D.D.C. 2006) (noting that range of circumstantial evidence, including proof of opportunity to conspire in the form of attendance at meetings or discussions, may help plaintiffs carry their burden of proving a conspiracy) (citing Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998 F.2d 1224, 1242 (3d Cir.), cert. denied, 510 U.S. 994 (1993)). While defendants protest that they may have perfectly legitimate meetings,[1] the existence of a date and time for a meeting, whether legitimate or not, may lead to relevant evidence of a discussion at that meeting that is probative of plaintiffs’ case. By the same token, evidence of such meetings would be relevant only if the attendees had the power and capacity to influence, recommend, or adopt a fuel surcharge. I do not have sufficient information to be comfortable describing such persons by title or job. Instead, in the interest of achieving a balance between utility and burden, I will require defendants to produce the calendars and expense reports of any of their employees who have the authority to influence, recommend or adopt a fuel surcharge. If the defendants omit any individuals that plaintiffs believe fall within the criteria I have outlined, plaintiffs may explain their basis for seeking those individuals’ calendars in a short brief to the Court.

*4 As to redactions, the result of the proliferation of portable and web-based electronic calendars is that Americans no longer keep records that differentiate between their business and their family and social obligations. To the contrary, their Outlook files and their Blackberries contain a glorious mishmash of everything in their lives from business meetings to picking up the kids after soccer. The commingling of activities plus the fact that most calendar entries contain only brief descriptions of the activity will make separating what is relevant from what is not daunting. Nevertheless, the defendants’ desire to eliminate what is unnecessary and nobody’s business is understandable. I fear, however, that using defendants’ formulation of what is relevant may lead to more fights. Instead, I will require the defendant only to redact entries in calendars that would appear to a reasonable person to be purely personal and unrelated to any business or professional obligation whatsoever.

I expect defendants to err on the side of not redacting a questionable entry. I will resolve any disputes in camera if necessary, but I can only hope that I will not spend the rest of my life trying to determine whether someone in public relations really had a dental appointment.

For the reasons stated herein, the plaintiffs’ request that discovery be permitted to cover the time period from January 2000 to the end date that the parties have agreed upon is GRANTED IN PART AND DENIED IN PART. Further, the plaintiffs’ request for production of calendar entries and expense reports is GRANTED IN PART AND DENIED IN PART.

SO ORDERED.