JAMES KELLY LAMBERT, ET AL. v. BOARD OF COMMISSIONERS OF THE ORLEANS LEVEE DISTRICT, ET AL CIVIL ACTION NO: 05-05931 United States District Court, E.D. Louisiana Filed June 06, 2008 Counsel Adam Stewart Lambert, Adam S. Lambert, Attorney at Law, Andre P. Guichard, Andre Guichard, Attorney at Law, New Orleans, LA, Louis Roy Koerner, Jr., Koerner Law, Houma, LA, for James Kelly Lambert, Donald J. Scott, W. Robin Lovelock. Thomas P. Anzelmo, McCranie, Sistrunk, Metairie, LA, Kyle P. Kirsch, McCranie, Sistrunk, New Orleans, LA, for Board of Commissioners of the Orleans Levee District. Glenn B. Adams, Chauntis T. Jenkins, Denia Sylve Aiyegbusi, Porteous, Hainkel & Johnson, New Orleans, LA, for Marine Recovery and Salvage, LLC, Douglas Scott Carmouche, Michael George Mayer. Bradley Joseph Schlotterer, Brett P. Fenasci, Charles Rowand Talley, Karen Waters Shipman, Kean Miller LLP, New Orleans, LA, for James P. Huey. Brennan C. Ardoin, Brennan C. Ardoin, Attorney at Law, Baton Rouge, LA, for George L. Carmouche. Russell Keith Jarrett, Joseph I. Giarrusso, III, Liskow & Lewis, New Orleans, LA, for Resolve Marine Group. Roby, Karen Wells, United States Magistrate Judge ORDER *1 Before the Court is a Refiled Motion of Plaintiffs to Compel Electronically Stored Discovery in the Possession of Resolve Marine Group and for Sanctions with Discovery Certificate (R. Doc. 164), filed by the Plaintiffs. In opposition, the Defendant, Resolve Marine Group (“Resolve”), filed Resolve’s Opposition to Plaintiffs’ Refiled Motion to Compel Discovery (R. Doc.165). The motion was heard with oral argument on March 12, 2008. I. Background The Plaintiffs, owners of vessels located at Orleans Marina, bring this class action lawsuit against the Board of Commissioners of the Orleans Levee District (“Orleans Levee District”) regarding their vessels, which sustained damage from Hurricane Katrina. (R. Doc. 1.) Orleans Levee District allegedly operates two marinas in the Parish of Orleans: (1) the South Shore Harbor Marina and (2) the Orleans Marina. (R. Doc. 1.) The Plaintiffs assert that pursuant to their lease agreements with the Orleans Levee District, that they, and other similarly situated tenants paid quarterly slip rental fees and obtained liability insurance in the minimum amount of $300,000.00 for their leases. (R. Doc. 1.) The Plaintiffs–specifically, the putative class representatives, James Kelly Lambert and Donald Scott–contend that they owned vessels docked at the Orleans Marina which sustained damage after Hurricane Katrina because the Orleans Levee District effectively prevented them from timely salvaging, lifting, or performing other recovery work on their vessels. (R. Doc. 1.) The Plaintiffs allege that after Hurricane Katrina, the Orleans Levee District refused to open the floodgates to its marinas or give its tenants full access to their property and boat slips. (R. Doc. 1.) However, the Plaintiffs indicate that the Orleans Levee District exclusively allowed Marine Recovery and Salvage, LLC (“Marine Recovery”), (2) Resolve Marine Group (“Resolve”), and (3) St. Tammany Pearl River Salvage (“St. Tammany”) unrestricted access to perform salvage and recovery work on the vessels in the marina. (R. Doc. 1.) Purportedly, the three authorized companies routinely moved, salvaged, and even damaged vessels in the marina without valid authority from the vessel owners and charged exorbitant prices, in excess of the market prices. (R. Doc. 1.) The Plaintiffs contend however, that the vessel owners themselves and other contractors were prevented from performing work on or accessing vessels in the Orleans Levee District. (R. Doc. 1.) The Plaintiffs argue that the authorized salvage entities had entered into lucrative agreements with the marinas, effectively bribing the marinas to secure a monopoly to perform salvage work after Hurricane Katrina. (R. Doc. 1.) The Plaintiffs contend that Resolve and St. Tammany paid around 10% of their total income from marina operations to Marine Recovery to be a favored contractor. (R. Doc. 1.) Around October 25 to 28, 2005, the Orleans Levee District allegedly began permitting other salvage companies to operate in the marinas. (R. Doc. 1.) However, the Plaintiffs assert that the other operators were required to follow strict rules, including (1) providing proof of insurance with the Orleans Levee District as additional insured on the policy, (2) listing all vessels to be moved in the marina and the vessel owner’s name, (3) obtaining authorization from the vessel insurer, and (4) waiting for Orleans Levee District’s review and authorization of its marina operations. (R. Doc. 1.) However, the Plaintiffs assert that the three authorized companies were exempt from the rules applied to other contractors, and were permitted to access any vessel without oversight or permission from the Orleans Levee District. (R. Doc. 1.) *2 In light of these circumstances, the Plaintiffs contend that the Orleans Levee District (1) breached the lease agreements by preventing vessel owners from possessing their lease slips and recovering own property, (2) violated the antitrust laws by illegally agreeing and conspiring to hinder trade or commerce by permitting exclusive access to the marinas and charging exorbitant fees for salvaging boats in the marina, and (3) engaged in unfair trade practices or competition. (R. Doc. 1.) The subject motion arises from the Plaintiffs’ request for all electronic files in its notices of the corporate deposition of Resolve and other individual depositions. Specifically, the Plaintiffs sought access to Resolve’s computer hard drives and all electronic files and emails concerning salvage work to be done in the marinas. (R. Doc. 161-3, p. 4.) However, Resolve objected and indicated that it was not required to access its backup tapes in search of responsive emails. (R. Doc. 161-3, p. 4.) Consequently, the Plaintiffs filed this instant motion, contending that Resolve had an affirmative duty to preserve emails and backup tapes from September 29, 2005 to the present. The Plaintiffs maintain that Resolve was obligated to place a litigation hold on all electronic files arising from that time period. The Plaintiffs also request the award of attorney’s fees in connection with the motion. Resolve opposes the Plaintiffs’ motion, contending that it has already produced all relevant electronic files, and that the Plaintiffs have produced no evidence that Resolve destroyed any electronic evidence at issue in this case. Furthermore, Resolve contends that the burden and expense of producing responsive information in regards to the class action lawsuit are significant. II. Standard of Review Federal Rule of Civil Procedure (“Rule”) 26(b)(1) provides that “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.” The Rules specify that “[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). The discovery rules are accorded a broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials. Hebert v. Lando, 441 U.S. 153, 176 (1979). Nevertheless, discovery does have “ultimate and necessary boundaries.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)). Furthermore, “it is well established that the scope of discovery is within the sound discretion of the trial court.” Coleman v. American Red Cross, 23 F.3d 1091, 1096 (6th Cir.1994). As to electronic discovery, a party must preserve electronic evidence when it knows that the electronic evidence is relevant to current litigation or should have known that it may be relevant to future litigation. Consolidated Aluminum Corp. v. Alcoa, Inc., No. 03-01055, 2006 WL 2583308, at *2 (M.D. La. Jul. 19, 2006) (citing Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003)). When a party reasonably anticipates litigation, it must suspend its routine document retention or destruction policy and implement a “litigation hold” to preserve relevant documents. Id. However, Rule 26(b)(2) provides that “[a] party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of the undue burden or cost.” The producing party bears the burden to “show that the information is not reasonably accessible because of undue burden or cost.” Id. Even where the producing party demonstrates that the information is inaccessible, the court may nonetheless order discovery from such sources if the requesting party shows good cause. Id. III. Analysis *3 The Plaintiffs bring the subject motion on “Document Production Request 18,” made in their deposition notices.[1] In Request 18, the Plaintiffs seek “[a]ccess to and production of the hard drives and any prints outs of files and/or e-mails from all your computers utilized concerning any contractual arrangement concerning proposals for salvage work done or to be done in the Marinas owned by OLD [the Orleans Levee District’ in New Orleans.” (R. Doc. 161-3, p. 4.) In response, Resolve objected, and asserted that “Resolve is not obligated to produce the hard drives of its computers.” (R. Doc. 161-3, p. 4.) Resolve further indicated that “[t]o the extent Resolve has print copies of responsive, non-privileged emails generated or received by Mr. McInnis, those will be produced.”[2] Additionally, Resolve asserted that “[t]o produce all emails generated in September and October 2005 that would be responsive to this request would require access to Resolve’s back-up tapes. Under the Federal Rules of Civil Procedure, Resolve is not required to access back-up tapes.” (R. Doc. 161-3, p. 4.) Furthermore, during a deposition on December 11, 2007 of Francis Leckey (“Leckey”), Resolve’s onsite chief salvage master,[3] counsel for Resolve allegedly revealed that though they believed that they had been provided with all responsive documents to the request, “[t]here are potentially, they [Resolve employees] don’t even know this, but there’s potentially some additional e-mail messages that might be available on a back-up tape.” (R. Doc. 162-2, p. 4.) The Plaintiffs therefore contend that Resolve failed to produce responsive email documents on Resolve’s backup tapes for the period of September 2005 through December 2005, as relating to the activities at the marinas in question. They argue that Resolve was required to put a litigation hold on those electronic documents, to preserve and prevent the spoliation of evidence, and that Resolve must produce these documents in response to the Plaintiffs’ deposition requests. The Plaintiffs contend that Resolve entered into a contract with Marine Recovery, which permitted Resolve to work in the marina, on September 29, 2005. Therefore, they maintain that a litigation hold should have been implemented from that point onward. While they conceded at the hearing on the motion that Resolve produced emails of various actors, the Plaintiffs argue that they still seek emails from other relevant individuals, including Melissa Hughes, Josh Pena, and Tim Erickson.[4] In response, Resolve contends that it has already produced emails from that period and there is no evidence that it has not produced responsive and non-privileged emails. Furthermore, it maintains that it should not have to be burdened with the substantial costs of producing electronic documents in this class action lawsuit. In support of its motion, Resolve submits a declaration of Izod Kahn (“Kahn”), an individual who manages and oversees Resolve’s information technology (“I.T.”) department. Kahn avers that he searched the emails of (1) Leckey, (2) Joe Farrell, (3) Tim McKinnis (“McKinnis”),[5] and (3) Denise Johnston in response to the Plaintiffs’ deposition notice for relevant emails. (R. Doc. 165-2, Ex. A.) Resolve indicates that Leckey and McKinnis were onsite Resolve employees, however, the identities of the other named individuals is unclear. *4 After examining the Plaintiffs’ request and considering the parties’ contentions, the Court concludes that the discovery request is overbroad as written.[6] The Plaintiff’s request encompasses all of Resolve’s hard drives and all email communications and electronic file printouts, with no limit in time. Further, the Plaintiffs failed to specify the relevant actors to whom the discovery pertains. The Court concludes that the Plaintiffs cannot request all email communications and electronic files in this class action lawsuit, but must narrow the scope of their discovery to the specific names or groups of senders or recipients and to a fixed time frame. Furthermore, while the Plaintiffs are entitled to discover electronic information, they are not entitled to freely access all of Resolve’s hard drives from “computers [that Resolve] utilized concerning any contractual arrangement concerning proposals for salvage work done or to be done in the Marinas owned by OLD [the Orleans Levee District] in New Orleans.” (R. Doc. 161-3, p. 4.) Because the Plaintiffs’ discovery inquiry fails to have any temporal or other reasonable limitations, the inquiry presented by the Plaintiffs is overbroad as written, and therefore, the Court denies the Plaintiffs’ motion to compel a discovery response to the inquiry.[7] IV. Conclusion Accordingly, IT IS ORDERED that Refiled Motion of Plaintiffs to Compel Electronically Stored Discovery in the Possession of Resolve Marine Group and for Sanctions with Discovery Certificate (R. Doc. 164) is DENIED. However, the Plaintiffs may refile their motion, if, upon further inquiry, the Plaintiffs determine that after receiving supplemental responses to a more targeted inquiry, that the responses remain insufficient. Footnotes [1] Although the Plaintiffs generally discuss electronic discovery in their motion, they only specifically identify one document request in their motion. [2] The identity of “Mr. McInnis” is unclear from the filings associated with the instant motion. [3] The deposition of Francis Leckey was taken on December 11, 2007, in Fort Lauderdale, Florida. (R. Doc. 165-2, Ex. C, p. 7.) At the hearing on the motion, the parties indicated that Leckey was the chief salvage master for Resolve, and Resolve indicated in its reply to the subject motion that Leckey worked onsite at the marina as a Resolve employee. [4] The names are spelled based on phonetic pronunciation, as transcribed at the hearing. [5] It is unclear whether the “Mr. McInnis,” earlier referenced in Resolve’s response to the disputed discovery inquiry, and “Tim McKinnis” are the same individual. [6] The Plaintiffs may have subsequently attempted to limit the scope of their discovery inquiry because Resolve’s response only referred to emails generated in September and October 2005, while the Plaintiffs did not have such a time limit on their request. Furthermore, Kahn indicated that he only searched the hard drives of particular individuals in his affidavit and at the hearing, the Plaintiffs referred to specific individuals to which it sought electronic documents. However, the parties do not explicitly inform the Court that the inquiry was limited in any fashion. [7] In light of the Court’s conclusion, the Court does not reach the issue of whether Resolve should have affirmatively implemented a litigation hold on electronic evidence as of September 29, 2005, when it entered into an agreement to perform work at the marina. However, in the subject motion, the Court notes that the Plaintiffs have not presented convincing evidence that Resolve should have known when it entered into the contract to perform salvage work on September 29, 2005, that electronic evidence generated with regards to its work at the marina would be relevant to future litigation, especially since the instant suit was filed on November 4, 2005. See Consolidated Aluminum, 2006 WL 2583308, at *2 (reasoning that a party must preserve electronic evidence when it knows that the electronic evidence may be relevant to future litigation).