Sanchez, Plaintiff, v. SunGard Availability Services, LP, et al, Defendants Civil Action No. 06-3660 (DRD) United States District Court, D. New Jersey Filed March 31, 2008 Counsel Hector Sanchez, Fair Lawn, NJ, pro se. Richard G. Rosenblatt, Sean Patrick Lynch, Morgan, Lewis & Bockius, LLP, Princeton, NJ, for Defendants Shipp, Michael A., United States Magistrate Judge OPINION AND ORDER I. INTRODUCTION *1 This matter comes before the Court on Defendant SunGard Availability Services LP’s and Defendant Fidel Cardenas’s (collectively “Defendants”) Motion to Compel Discovery, for Sanctions, and for Cost-Sharing of Defendants’ Electronic Discovery Production filed on June 15, 2007 and Plaintiff Hector Sanchez’s (hereinafter “Plaintiff” or “Mr. Sanchez”) Cross-Motion to Compel Written/Electronic Discovery, for Depositions and for Sanctions, filed on July 9, 2007. This Court assumed case management duties for this matter on November 1, 2007. On November 27, 2007, the Honorable Ester Salas, U.S.M.J., granted Plaintiff’s counsel’s motion to withdraw as counsel and granted Plaintiff until December 31, 2007 to retain new counsel. On January 7, 2008, this Court granted Plaintiff until January 31, 2008 to retain new counsel. On February 11, 2008, this Court denied Plaintiff’s request for an additional three months to retain counsel. The Court conducted an in-person status conference on the record on March 3, 2008. At that time, the Court indicated to Mr. Sanchez and counsel for the Defendants that the Court would issue a decision on the outstanding motion and cross-motion which had been fully briefed before Judge Salas permitted Plaintiff’s counsel to withdraw from the case. II. BACKGROUND Defendants moved to compel production of documents. Defendants asserted that at defendant Cardenas’s deposition, he was “sandbagged” with an e-mail and attachment which had not been produced by Plaintiff in discovery despite the fact that it was responsive to Defendants’ discovery requests. (Def.’s Mot. Br. 1) Defendants asserted that Plaintiff still refused to produce the requested documents in response to new discovery requests which explicitly encompassed email and attachments similar to and including the document used at Mr. Cardenas’s deposition. (Def.’s Mot. Br. 1) Defendants also sought to compel Plaintiff’s personal computer for inspection and imaging because Plaintiff admitted that he had been deleting e-mail regularly from his computer. (Def.’s Mot. Br. 1-2) Defendants also sought sanctions. (Def.’s Mot. Br. 2) Plaintiff maintained that the documents produced during Mr. Cardenas’s deposition were to be utilized solely for impeachment purposes and were therefore exempt from pre-trial disclosure. (Pl.’s Opp’n Mot. Br. 3) Plaintiff asserted that Defendants improperly terminated the Cardenas deposition and continually failed to produce their own emails in violation of the Court’s discovery order. (Pl.’s Opp’n Mot. Br. 1) Plaintiff requested that the Court sanction Defendants, require the Defendants to produce a witness from SunGard who is most knowledgeable about email retention and retrieval, and a witness from its vendor, Legis Discovery, who is most knowledgeable about the alleged forensic analysis of the Defendants’ hard drive. (Pl.’s Opp’n Mot. Br. 1) Plaintiff also sought sanctions. (Pl.’s Opp’n Mot. Br. 35-38) III. DISCUSSION Federal Rule of Civil Procedure 26 defines the methods, scope, limits and process of discovery. Section (b) of that rule establishes the limits of discovery. It provides that parties may obtain discovery regarding any party’s claim or defense. Rule 26(b) also provides that for good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. As this court has recognized, “[c]ourts have construed this rule liberally, creating a broad vista of discovery.” Tele-Radio Systems Ltd. v. DeForest Electronics, Inc., 92 F.R.D. 371, 375 (D.N.J. 1981). In interpreting Rule 26(b)(1), district courts must be mindful that relevance is a broader inquiry at the discovery stage than at the trial stage. Nestle Food Corp. v. Aetna Cas. and Surety Co., 135 F.R.D. 101, 104 (D.N.J. 1990). 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)(1) *2 While broad, discovery is not boundless. Rule 26(b)(2) vests the District Court with the authority to limit a party’s pursuit of otherwise discoverable information. The Third Circuit recognized this power stating that, “[a]lthough the scope of discovery under the Federal Rules is ... broad, this right is not unlimited and may be circumscribed.” Bayer AG v. Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999). Specifically, the rules provide that the frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if the burden or the expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action and the importance of the discovery in resolving the issues. Fed. R. Civ. P. 26(b)(2)(C) A. Defendants’ Motion to Compel Discovery, for Sanctions, to Forensically-Image Plaintiff’s Hard Drive, and for Cost-Sharing 1. Defendants’ Request to Compel Documents Allegedly Withheld by Plaintiff Defendants asserted that Plaintiff deliberately withheld documents listed in his initial disclosures and responsive to Defendants’ discovery requests. (Def.’s Mot. Br. 5) Defendants’ First Request for Production sought “[a]ny and all documents evidencing, referring, or relating in any way to your employment with SunGard” and “[a]ny and all documents that you maintain or keep ... insofar as such documents refer or relate to SunGard, any of the other plaintiffs or defendants in this case, or any of the incidents alleged in your Complaint.” (Def.’s Mot. Br. 6)(citing Def.’s First Req., Ex. F, nos. 8 and 9 at 6-7) Defendants also noted that Plaintiff’s own Initial Disclosures included a reference to “E-mails and any related attachments between the parties.” (Def.’s Mot. Br. 6) In addition, following oral argument on May 21, 2007, Defendants served supplemental discovery requests directed at e-mails and attachments that Plaintiff sent and received while working at SunGard and Plaintiff still refused to produce them. (Def.’s Mot. Br. 8) Plaintiff stated that the Cardenas slide show is not relevant to Plaintiff’s claims or Defendants’ defenses. (Pl.’s Opp’n Mot. Br. 9-10) Plaintiff asserted that the right to not disclose evidence to be solely used for impeachment is protected through the filing of the final pretrial order. (Pl.’s Opp’n Mot. Br. 10) The Plaintiff’s brief also provided: [E]ven if there is a substantive component to the sexual slide show presented to Cardenas at his deposition (which there is not) if anything the appropriate relief might be to limit the evidence offered at trial to its impeachment value which is something plaintiff has, at all times, agreed to do since that is the only purpose for which the document(s) has been offered. (Pl.’s Opp’n Mot. Br. 19) Plaintiff further asserted, “counsel intended to disclose all of plaintiff’s impeachment email at the Cardenas deposition. Had defendants’ counsel simply allowed the deposition to continue, defendants’ impractical, unwarranted, and legally unsound motion would have been obviated.” (Pl.’s Opp’n Mot. Br. 26) This Court is not convinced by Plaintiff’s arguments. The emails and related attachments sought by Defendants could be reasonably calculated to lead to the discovery of admissible evidence under Rule 26(b). The Court finds that the evidence is responsive to specific requests and may have a substantive purpose. While the Court holds that the Plaintiff must turn over the emails and related attachments requested by Defendants, the Court is not inclined to grant sanctions. The Defendants terminated the Cardenas deposition without having contacted the Court for instruction. (Pl.’s Opp’n Mot. Br. 4) In addition, even though the Court was not convinced by Plaintiff’s arguments, the Court believes that Plaintiff set forth a good-faith, reasoned argument in support of his position that he did not have to turn over documents he solely intended to use for impeachment purposes. Defendants did not cite any Third Circuit precedent which made clear that Plaintiff’s conduct was so egregious as to warrant sanctions, whether those sanctions consist of exclusion of evidence at trial, a limiting instruction and/or financial sanctions. *3 At this stage of the proceedings, the Court does not need to decide whether the evidence will be admissible. Rather, the Court finds that the discovery sought is reasonably calculated to lead to the discovery of admissible evidence. 2. Defendants’ Request to Forensically-Image Plaintiff’s Hard Drive Defendants request leave to forensically-image Plaintiff’s hard drive. Defendants seek a manifest prepared by a qualified computer forensic specialist of all active and recoverable deleted content on Mr. Sanchez’s hard drive. (Def. Reply Br. 10) Defendants’ brief asserted, “It is irrefutable that relevant information is stored on the hard drive of Plaintiff’s personal computer, which he uses to conduct his personal and business affairs.” (Def.’s Mot. Br. 14) Defendants also asserted that Plaintiff produced only 10 pages of e-mail evidencing a job search that supposedly spanned 49 companies. (Def.’s Mot. Br. 14) Defendants’ brief referenced Plaintiff’s deposition during which Plaintiff admitted that he deleted documents. (Def.’s Mot. Br. 16-19) Plaintiff asserted that Defendants are seeking to indirectly obtain any impeachment documents they think may be on the hard drive as a way to do an end-run around the safe harbor provisions of Rule 26. (Pl.’s Opp’n Mot. Br. 31) Plaintiff’s brief provided that Plaintiff “has already exhaustively produced all documents requested both from his personal computer and independently.” (Pl.’s Opp’n Mot. Br. 31) Plaintiff also asserted that he provided defense counsel with the file images on Mr. Sanchez’s hard drive and with a privilege log of protected documents. (Pl.’s Opp’n Mot. Br. 33) While Plaintiff asserted that Defendants were not entitled to forensically-image Mr. Sanchez’s hard drive, Plaintiff made several requests regarding the imaging should the Court order it.[1] The Court will permit Defendants to forensically image the hard drive at the Defendants’ expense. Plaintiff admitted during his deposition that he deleted documents. (Def.’s Mot. Br. 16-19) In addition, Plaintiff’s brief in opposition to the within motion provided, “Indeed, the fact that plaintiff may, or may not, have deleted files from his computer over the last 2 years is not necessarily surprising given his concern about viruses and cookies and his attempts to keep his computer running smoothly.” (Pl.’s Opp’n Mot. Br. 31) While the Plaintiff may have wanted to keep his computer running smoothly, Plaintiff also had an obligation not to spoil any potential evidence in the case. The Court was inclined to follow the protocol requested by the Plaintiff. However, Plaintiff’s counsel withdrew as attorney and Plaintiff has not retained new counsel. In addition, the Court currently has custody of the Plaintiff’s hard drive. The Court will therefore order the following: *4 a. By April 11, 2008, Defendants will submit a proposed protocol for the forensic-imaging of Plaintiff’s hard drive. Counsel will submit the proposed protocol to the Court with a copy to Plaintiff. The protocol should include a proposed form of Protective Order. b. By April 25, 2008, Plaintiff may submit a response regarding the proposed protocol and the proposed form of Protective Order. If Plaintiff does not submit a response, Defendants’ submission will be considered unopposed. c. If Plaintiff makes a submission in response to the proposed protocol, Defendants may submit a reply by May 2, 2008. 3. Defendants’ Request for Cost-Sharing Defendants request that the Court order Plaintiff to share in the cost of electronic discovery. (Def.’s Mot. Br. 21) Defendants asserted that they sought to confer with Plaintiff regarding a cost-sharing plan, but Plaintiff refused to participate. (Def.’s Mot. Br. 21) Defendants request half of the production cost attributed to Plaintiff. (Def.’s Mot. Br. 22) Plaintiff stated that Defendants never sought the assistance of the Court or an order for cost-sharing prior to choosing a vendor. (Pl.’s Opp’n Mot. Br. 26) Plaintiff also stated that the Defendants had ample opportunity to make a request for cost-sharing, including when the parties appeared on January 16, 2007. (Pl.’s Opp’n Mot. Br. 27) According to Plaintiff, Defendants only made a cost-sharing request after the costs were incurred. (Pl.’s Opp’n Mot. Br. 27) Plaintiff asserted that the Defendants failed to present the Court with a cost-sharing/shifting analysis pursuant to the leading e-discovery case, Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003). This Court will not require Plaintiff to contribute half of the e-discovery production cost. Neither brief provided a sufficient analysis of either the Zubulake factors or the factors set forth in Fed. R. Civ. P. 26(b)(2)(C) regarding the burden or expense of the discovery, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action and the importance of the discovery in resolving the issues. Based on a consideration of the papers submitted and relevant law, the Court does not find that cost-sharing would be the fair remedy in the present case. B. Plaintiff’s Cross-Motion to Compel and for Sanctions Plaintiff filed a Cross-Motion to Compel and for Sanctions. Plaintiff asserted that the Defendants have failed to produce all emails that were the subject of a discovery order. (Pl.’s Opp’n Mot. Br. 37) Plaintiff requested a further order compelling Defendants to produce all emails that were the subject of the discovery order.[2] The Plaintiff also sought an order to produce, at Defendants’ cost, (i) the most knowledgeable witness from SunGard on the subject of it’s email network, the email retention policy, and the internal search for any email responsive to Plaintiff’s discovery requests, and (ii) the most knowledgeable witness from LegisDiscovery concerning the forensic imaging and search for responsive email. (Pl.’s Opp’n Mot. Br. 38) Plaintiff also requested that the Court require Defendants to pay for Plaintiff’s counsel’s professional time and expenses in resuming the Cardenas deposition. (Pl.’s Opp’n Mot. Br. 37) Plaintiff further requested that the Court require Defendants to reimburse Plaintiff for the attorney’s fees and expenses incurred in defending the motion to compel and for the fees and expenses associated with Plaintiff’s cross-motion. (Pl.’s Opp’n Mot. Br. 38) *5 Defendants stated that they fully complied with their discovery obligations. (Def.’s Reply Br. 13) Defendants referenced Mr. Croy’s Declaration which provided that the vast bulk of emails regarding Plaintiff were purged in the ordinary course before this action was ever filed. (Def.’s Reply Br. 13) Mr. Croy’s Declaration also detailed SunGard’s back up tape recycling policy and the efforts Defendants made to comply with Plaintiff’s discovery requests. (Def.’s Reply Br. 13-15) There are no facts in the motion papers from which the Court could reasonably conclude that the Defendants deliberately failed to provide requested discovery or engaged in the spoliation of evidence. In addition, the Court does not find that the termination of the Cardenas deposition in the light of the previously undisclosed discovery rises to the level which requires sanctions. Therefore, the Court will not order any sanctions against the Defendants. This Opinion and Order does not preclude Plaintiff from noticing a 30(b)(6) deposition of a witness from SunGard on its email network, email retention policy, and the internal search for any email responsive to Plaintiff’s discovery requests, and a 30(b)(6) deposition of the most knowledgeable witness from LegisDiscovery concerning the forensic imaging and search for responsive email. However, any such deposition would take place at Plaintiff’s expense, not Defendants’ expense. The Court will schedule a status conference and set new discovery-related deadlines in a subsequent order. IV. CONCLUSION For the foregoing reasons, Defendants’ Motion is GRANTED-IN-PART and Plaintiff’s Motion is DENIED. Footnotes [1] According to Plaintiff, the imaging should be at the requestor’s expense. In addition, a Court or agreed upon expert would have to be appointed to image the drive. Plaintiff’s counsel would retain the drive, print out all documents, and provide responsive documents to Defendants’ counsel subject to any asserted privilege. The expert should sign a Protective Order and all documents between the requestor and expert should be produced. (Pl.’s Opp’n Mot. Br. 33) [2] Plaintiff’s brief referenced a January 16, 2007 discovery order and a January 16, 2006 discovery order. Any references to a 2006 order are apparent typographical errors in Plaintiff’s brief.