I. MOTIONS PRESENTED

Before the Court is Plaintiff's Motion to Compel and For Sanctions (Ct. Rec. 42); Plaintiff's Motion to Strike Supplemental Declaration of Ryan Edgley Opposing Motion to Compel (Ct. Rec. 62); Plaintiff's Motion to Expedite Plaintiff's Second Motion to Strike (Ct. Rec. 71); and Plaintiff's Second Motion to Strike Declarations of Walter Miller and Ryan Edgley (Ct. Rec 74).

The Court has reviewed the file and pleadings in this case and the submitted motions and corresponding memoranda and is fully informed. This Order is entered to memorialize and supplement the oral rulings of the Court.

II. BACKGROUND

Plaintiff alleges harassment, employment discrimination and retaliation based upon Plaintiff's national origin by his former employer, Defendant Opportunities Industrialization Center (“OIC”). While working at OIC Plaintiff was demoted and eventually terminated. Defendant is an employment training and housing improvement organization, and Plaintiff worked in the Information Technology and Managements Information Systems departments. Defendant claims that Plaintiff was demoted and fired for incompetence and unprofessionalism. The current dispute between the parties involves the scope of discovery, answers to interrogatories, and motion practice.

III. APPLICABLE LAW

Under Federal Rule of Civil Procedure 26(b)(1), information is discoverable if it is “relevant to the claim or defense of any party.” Fed. R. Civ. P. 26(b)(1). Relevant information need not be admissible if it is “reasonably calculated to lead to the discovery of admissible evidence.” Id. “Pretrial discovery is normally to be accorded a broad and liberal treatment.” Herbert v. Lando, 441 U.S. 153, 183 (1979). According to Federal Practice,

§ 24.07 (3rd ed. 1995).

Similarly, a motion to compel discovery also may be granted if the information sought is relevant or reasonably calculated to lead to the discovery of relevant information. Reygo Pacific Corp. v Johnson Pump Co., 680 F.2d 643 (9th Cir. 1982). The trial court's consideration of these motions is discretionary. Id. Failure to make disclosures or to cooperate in discovery is governed by Fed. R. Civ. Pr. 37. The rule states in part:

*2 Id.

Rule 37 continues in relevant part:

In addition to a duty to disclose, litigants have a duty to preserve documents that may be relevant to pending or imminent litigation. See Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y.2003) (“the obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation”). “Spoliation” has been defined as “the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999); Leon v. IDX Systems Corp., 464 F.3d 951, 959 (9th Cir. 2006)(acknowledging “a party's destruction of evidence qualifies as willful spoliation if the party has ‘some notice that the documents were potentially relevant to the litigation before they were destroyed’ ”).

There is a presumption that costs are normally the burden of the party with the discovery rather than the requesting party. See Peskoff v. Faber, 251 F.R.D. 59, 61(D.D.C., 2008); Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978). In developing case law this presumption continues to operate where the discovery sought is electronically stored information. Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 317 (S.D.N.Y.2003). However, courts have discretion to shift all or part of the costs. Oppenheimer, at 358. Several courts have held that cost shifting should only be considered when electronic data is relatively inaccessible, such as in backup tapes as opposed to hard drives. Wachtel v. Health Net, Inc., 239 F.R.D. 81, 91 n. 23 (D.N.J.2006); Cason-Merenda v. Detroit Medical Canter, C.A. No. 06-15601, 2008 WL 2714239, at *3 (E.D.Mich, 2008). The purpose of shifting the cost of production is to “protect [the responding party] from ‘undue burden or expense.’ ” Oppenheimer, 437 U.S. at 358 (quoting Fed.R.Civ.P. 26(c)).

IV. DISCUSSION

Plaintiff's motion to compel includes a wide range of discovery requests, including access to Defendant's computer files and information about Defendant's computer systems from 1998 to the present. Plaintiff's attorney submitted documentation supporting that he has conferred with defense counsel on five separate occasions to resolve the discovery requests that form the basis of Plaintiff's motion. (Ct. Rec. 44.) These conferences occurred, or were attempted, on September 22, 2009; October 8, 2009; October 13, 2009; January 19, 2010; and January 27, 2010.

*3 During the March 26, 2010, telephonic conference, Defense counsel informed the Court that defense counsel first learned in early March, 2010, that the requested discovery dating prior to early 2006 could not be produced because the computer servers used by OIC during Plaintiff's employment had been irreparably damaged, and that only backup tapes of these servers exist. However, defense counsel stated that OIC no longer has equipment or the ability to read the backup tapes. Both parties agree that a computer recovery service would be required to search the pre-2006 backup tapes.

Although this case was filed in 2008, Plaintiff had filed a complaint with the Washington State Human Rights Commission prior to August, 2005, the same year that Plaintiff was terminated (See Ct. Rec 57-2). Therefore, the Court finds that Defendant had notice by August, 2005, at the latest, that it was reasonably foreseeable that litigation would occur regarding Plaintiff's termination and had notice that evidence relating to Plaintiff's demotion and termination needed to be preserved. See Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y.2003).

Accordingly, the Court grants Plaintiff's request to have a computer recovery service search the backup tapes for relevant information from April, 2000, when Plaintiff was hired by OIC, to the present. During oral argument, Plaintiff indicated that he had received a quote from a computer recovery service that a thorough search of the backup tapes would cost approximately $20,000. The Court orders Defendant, as the producing party, to pay the initial $10,000 in computer recovery service costs for the recovery and authorized search of the backup tapes. All computer recovery and authorized search service costs in excess of $10,000 will be shared by the parties with the Plaintiff paying 25% of those costs in excess of $10,000 and Defendant paying 75% of those costs in excess of $10,000. The parameters of the search are set out in this Order.

During the March 26, 2010, telephonic hearing, Defense counsel agreed to provide Plaintiff's counsel with any available backup disks made from the computers of some current and some former OIC employees. The Court directs Defendant to supply any available backup disks for the computers of Mr. Mitchell, Mr. Duncliff, Mr. Harris, Mr. Mayo, Ms. Watley, and Ms. Gray. Plaintiff indicated that receipt of those backup disks would be satisfactory for discovery purposes.

In addition, Plaintiff requested access to search for relevant files on the computers of current employees, including Mr. Miller, Mr. Beyene, Ms. Dennis, and Ms. Parks. Defense counsel has agreed to allow Plaintiff's counsel, with the assistance of Plaintiff, to search those computers after Defendant establishes user names and passwords that restrict access to Defendant's network in order to protect Defendant's confidential information, such as clients' names and social security numbers. Defendant is ordered to establish the user names and passwords and schedule a date for Plaintiff to search Defendant's network within a two week period from the date of this Order.

The parties have informed the Court that some of the itemized discovery disputes stated in Plaintiff's Motion to Compel have been resolved. The remaining disputes shall be addressed in the order they were presented in the March 26, 2010 hearing.

Regarding the first set of Interrogatories:

1. Plaintiff's Interrogatory #18 and Request For Production #39 (a request to identify witnesses contacted by Defendant and a request to produce relevant documents that were produced or reviewed by these witnesses): the Court grants Plaintiff's request to search the backup tapes from April 2000 to present for additional witnesses and documents produced and reviewed by these witnesses, using the assistance of the computer recovery service as noted above;

*4 2. Plaintiff's Request for Production #10 (request for all OIC's personnel manuals including revisions): the parties informed the Court on March 29, 2010, that Defendant will mail a copy of all personnel manuals, including the latest revisions, to Plaintiff's counsel for review;

3. Plaintiff's Request for Production # 21 (request for documents relating to the April 18, 2005, board of directors' meeting): the Court grants Plaintiff's request to search Defendant's backup tapes for additional documents related to the board of directors' meeting of April 18, 2005;

4. Plaintiff's Requests for Production #25 and #26 (request for materials that would be needed to refresh Mr. Beauchamp and Mr. Beyene's recollections regarding incidents in this case): the Court finds this request to be vague and overly broad and denies Plaintiff's request to compel production of these materials;

5. Plaintiff's Request for Production #28 (request to review Plaintiff's OIC personnel file): Plaintiff's counsel informed the Court on March 29, 2010, that Defendant already has provided Plaintiff's counsel with Plaintiff's original personnel file.

Regarding the second set of interrogatories:

1. Defendant objected to Plaintiff's submission of interrogatories in excess of the amount allowed by Fed. R. Civ. P. 26. However, Defendant has agreed to answer the first six interrogatories, including an itemization of Defendant's computer equipment. Plaintiff represented to the Court that OIC's accounting department already has lists in existence of OIC computers, cell phones, and software. Defendant is not required to create new lists but shall provide Plaintiff with any existing lists of all computers, servers, laptops, cell phones, including any manufacturing model numbers or years, owned or used by OIC from 1998 to the present. Additionally, any existing software license information lists shall also be provided for this same time period;

2. Plaintiff's Request for Production #7 (request for all documents related to any employment actions or considerations related to Plaintiff's employment): Defendant has agreed to allow Plaintiff to search the computers of the following employees: Mr. Miller, Mr. Beyene, Ms. Park, Ms. Dennis, and Mr. Beauchamp. Additionally, the parties discussed an audit (or audits) that resulted in Plaintiff's performing an inventory in April 2005. The Court finds that Defendant need only produce documentation that Defendant was required to perform inventory audits during April of 2005;

3. Plaintiff's Requests for Production #23, #24, #25, and #27 (requests for copies of personnel files of similarly situated employees): Defense counsel has represented that he has complied with these requests. Additionally, Defense counsel has agreed to search for any employment files relating to a past independent contractor affiliated with OIC by the name of Girma Demissie.

Although Defendant was on notice to preserve discovery and produce discovery in a timely manner, the Court does not find that any spoilation occurred, nor that sanctions are appropriate in this case.

Accordingly, IT IS HEREBY ORDERED:

1. Plaintiff's Motion to Compel and For Sanctions (Ct. Rec. 42)is GRANTED IN PART AND DENIED IN PART as discussed in this Order.

2. Plaintiff's Motion to Strike Supplemental Declaration of Ryan Edgley Opposing Motion to Compel (Ct. Rec. 62)is DENIED as moot.

*5 3. Plaintiff's Motion to Expedite Plaintiff's Second Motion to Strike (Ct. Rec. 71) is GRANTED.

4. Plaintiff's Second Motion to Strike Declarations of Walter Miller and Ryan Edgley (Ct. Rec 74) is DENIED as moot.

IT IS SO ORDERED. The District Court Executive is directed to enter this Order and forward copies to counsel.

DATED this 29th day of March, 2010.