EEOC v. W. Distrib. Co.
EEOC v. W. Distrib. Co.
2020 WL 5100248 (D. Colo. 2020)
August 24, 2020

Boland, Boyd N.,  Special Master

Inaccessible
Cost-shifting
Special Master
Proportionality
Failure to Produce
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Summary
The EEOC filed a Motion to Compel Production from Backup Tapes, which Western opposed. The court ordered that all 10 backup tapes must be restored, searched using established search terms, and a hit count provided for all 27 custodians. Western must bear the cost of the restoration and search, with the possibility of cost-sharing or cost-shifting to be re-evaluated after the initial restoration, search, and hit count are concluded.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
WESTERN DISTRIBUTING COMPANY, Defendant
Civil Action No. 16-cv-01727-WJM-STV
United States District Court, D. Colorado
Filed August 24, 2020

Counsel

Karl R. Tetzlaff, Lauren A. Duke, Lauren Golden Jaeckel, Michael Joseph LaGarde, Rita Byrnes Kittle, U.S. Equal Employment Opportunity Commission, Denver, CO, Benjamin C. Price, U.S. Equal Employment Opportunity Commission, Phoenix, AZ, Jeff Alan Lee, U.S. Equal Employment Opportunity Commission, Albuquerque, NM, for Plaintiff.
Heidi Kristina Wilbur, James Stuart Bailey, Senn Visciano Canges, P.C., Renee J. Sheyko, Steven W. Moore, Fox Rothschild LLP, Denver, CO, Jill E. Moenius, Nicole Hininger Howell, Fox Rothschild LLP, Kansas City, MO, for Defendant.
Boland, Boyd N., Special Master

MASTER'S DISCOVERY ORDER ON EEOC's MOTION TO COMPEL PRODUCTION FROM BACKUP TAPES [Doc. # 525]

*1 By an Order entered on May 22, 2019, I was appointed Master for the purpose of resolving discovery disputes referred by the Court. Among the powers granted in the Order were the following:
After referral by Magistrate Judge Varholak, the Master shall convene such hearings or direct the submission of additional briefs or materials as the Master deems appropriate and shall issue orders resolving such disputes.
Order at p. 13.
 
At issue now is the EEOC's Motion to Compel Production from Backup Tapes [Doc. # 525] (the “Motion”). The Motion and associated briefing are voluminous and include Western's Surreply [Doc. # 590] and the EEOC's Sur-Surreply [Doc. # 608].
 
Initially, the EEOC sought an order “compelling [Western] to collect, search, and produce relevant custodian ESI from ten backup tapes, using previously established search terms on ESI for all identified custodians.” Motion [Doc. # 525] at p. 1. I am informed that there are 27 custodians and 208 search terms. Response [Doc. # 550] at p. 14.
 
In support of its Motion, the EEOC argues that the requested information on the backup tapes is relevant; that the information contained on the backup tapes is reasonably accessible because either Western waived it right to resist the discovery based on reasonable accessibility by failing to assert that objection until three years into the litigation or, alternatively, that Western cannot meet its burden to show that the information is not reasonably accessible; and that even if the information is not reasonably accessible, good cause exists under Fed. R. Civ. P. 26(b)(2)(B) to order its production nonetheless.
 
Western opposes the Motion, arguing that it has made extensive production already, totaling more than 79,000 pages of documents; that the backup tapes are not reasonably accessible because (i) they are “obsolete,” “were incidentally retained for no particular reason,” and “are no longer compatible with Western's in-house technologies,” Response [Doc. # 550] at p. 12, and (ii) of the undue cost to restore, process, search, review, and produce the information, which Western estimates at between $401,686 and $855,336, id. at pp. 17-18; that Western has not waived its objection based on reasonable accessibility; and that the EEOC has failed to establish good cause to support an order compelling production of the backup tapes under Rule 26(b)(2)(B).
 
The EEOC shifted gears in its Reply and Sur-Surreply. Rather than requesting an order compelling production of responsive documents, the EEOC requested only that Western search the backup tapes and provide “hit counts” to the EEOC. Reply [Doc. # 570] at pp. 14-16. The relief ultimately sought by the EEOC is an order that Western:
1) retrieve ESI for the 27 custodians from the 10 specified backup tapes within two weeks of the Court's order; 2) search the data using previously-agreed search terms and the eight additional search terms ordered by the Court; 3) provide search reports to the EEOC [which] will cooperate to reduce any unnecessary review; 4) produce responsive, non-privileged ESI within 45 days thereafter, with a privilege log for documents withheld; 5) supplement its discovery responses accordingly; and 6) bear the costs.
*2 Sur-Surreply [Doc. # 608] at p. 9.
 
Western generally agrees to the EEOC's revised procedure but seeks to limit the scope of the search. Specifically, Western agrees to (1) restore and run hit count reports across two of the three “EXCHANGE” tapes;[1] (2) limit the search to the mailboxes of the 12 custodians whose ESI admittedly was deleted by Western;[2] (3) pay up to $3,000 of the restoration costs for the two EXCHANGE tapes, reserving its right to seek cost-shifting in the event restoration exceeds that amount; and (4) process and search the restored data at its own cost. Response [Doc. # 550] at pp. 2-3.
 
At issue is not whether the backup tapes can be accessed--they certainly can be. Nor is the issue whether the cost to restore and search the backup tapes is inordinate--it certainly is not given the scope of this case.[3]
 
The dispute here is driven by Western's costs to review the identified backup tape materials for responsiveness and privilege, which it estimates at between $345,450 and $735,589. The parties dispute whether costs to review properly are considered when determining reasonable accessibility. Compare Chen-Oster v. Goldman, Sachs & Co., 285 F.R.D. 294, 301 (S.D.N.Y. 2012), cited by the EEOC and stating that “the cost or burden must be associated with some technological feature that inhibits accessibility,” and Fed. R. Civ. P. 26 (2006 Adv. Comm. Notes on 2006 Amend.) cited by Western and stating that “the producing party's burden in reviewing the information for relevance and privilege may weigh against permitting the requested discovery.”
 
*3 In support of its burden argument, Western provided the Declaration of Dora P. Day [Doc. # 550-7], the e-discovery project coordinator for Western's litigation counsel. Ms. Day's declaration does not contain any estimate of the time required for Western's review of the identified backup tape materials, however, or the value of that time. Instead, to support its argument concerning the cost of review for responsiveness and privilege, Western relies entirely on the “EEOC's own vendor estimates that attorney review comprises approximately 86% of the total costs.” Response [Doc. # 550] at p. 17. In fact, Western relies on a single vendor estimate (the “BlueStar estimate”), which addressed review of social media, not business emails. It is not apparent, nor is any evidence provided, that the BlueStar estimate has any relevance to the expense Western would incur to review the identified backup tape materials.[4]
 
The parties appear to agree, and it seems apparent, that the EEOC's proposed compromise to require hit counts prior to determining the need to review and produce backup tape information is likely to save money and resources in a case that already has been subjected to extraordinary discovery by both sides. What is left for decision is the scope of the search.
 
1. Tapes to Be Reviewed
It is undisputed that the ESI accounts for 14 of Western's managerial employees were deleted after they left Western's employ. Response [Doc. # 550] at pp. 4-5. In addition, according to the EEOC, Western conducted a survey of five of the backup tapes which revealed that three of the tapes contain ESI for 18 custodians, including five custodians whose ESI had been deleted. Reply [Doc. # 570] at pp. 17-18.
 
Jennifer Maddox was Western's HR manager during much of the relevant time period and, according to the EEOC, “interacted with nearly all of the aggrieved individuals, and was a decisionmaker for many.” Motion [Doc. # 525] at p. 4. Although Maddox’ ESI was not deleted, and Western has disclosed approximately 300 emails in her ESI account, id. at p. 4, the EEOC has identified at least 12 additional emails to or from Maddox not contained in Western's ESI production. See Response [Doc. # 550] at pp. 5-7. The EEOC also has identified numerous additional emails[5] that were not produced by Western in electronic form, but were found in other sources. See Doc. # 525-18. The identified emails are relevant to the EEOC's enforcement action.
 
I agree with the EEOC that the missing emails demonstrate the likelihood that other emails also may be missing and may exist on the backup tapes. Western has provided only equivocal evidence that the MISC tapes “should mostly contain” non-email materials and “could store information from servers that are wholly irrelevant to the case,” but Western concedes that the MISC tapes “could contain some emails in the form of .pst files....” [Doc. # 550-6 at ¶24 (original emphasis).]
 
Accordingly, all 10 backup tapes identified by the EEOC must be restored, run against the established search terms, and a hit count provided.
 
2. Custodians to Be Searched
Western argues that the search of the backup tapes should be limited to the 14 custodians whose ESI was deleted, and that the “EEOC should not be permitted to get a second bite at the apple for all custodians for whom Western already produced ESI.” Surreply [Doc. # 590] at p. 3.
 
At least some of the ESI contained on the backup tapes involves custodians whose ESI was not deleted. Motion [Doc. # 525] at p. 6 (indicating that three backup tapes contained ESI from seven custodians whose ESI was not deleted). Moreover, the undisclosed emails concerning Maddox, discussed above, demonstrate that Western's production efforts to date have failed to reveal relevant ESI from custodians whose accounts were not deleted.
 
*4 In view of these facts, I am not persuaded by Western's “second bite” argument, and Western must run its search against all 27 custodians at issue in the Motion and report the responsive hits (per custodian).
 
3. Cost of Restoration and Search
Western has agreed that it should bear the cost of the limited restoration and search which it argues is appropriate. I am not persuaded that the larger restoration and search which I am ordering requires any cost-sharing or cost-shifting.
 
The allegedly large costs of review and production, which is the foundation of Western's reasonable accessibility argument, are not yet known. Cost-sharing or shifting can be re-evaluated after the initial restoration, search, and hit count are concluded and based on the more reliable cost estimate that information will allow.
 
IT IS ORDERED that the EEOC's Motion to Compel Production from Backup Tapes [Doc. # 525] is GRANTED to the following extent:
 
1. Western shall, within 14 days of this Order and at its own cost, restore and process the ten identified backup tapes, run the established search terms across those backup tapes for each of the relevant 27 custodians, and provide to the EEOC a report of the number of hits on each search term, per custodian, per tape.
 
2. Thereafter, Western and the EEOC shall cooperate to limit the burden and reduce the cost necessary for the review and production by Western of requested responsive, non-privileged backup tape materials.
 
Dated August 23, 2020.
 
s/Boyd N. Boland
 
Master
 
Judicial Arbiter Group, Inc.
 
Footnotes
The ten backup tapes at issue include three tapes from Western's “EXCHANGE” server and seven tapes from Western's miscellaneous non-Exchange servers (the “MISC” servers). Western distinguishes the two, conceding that responsive emails may be contained on the EXCHANGE server, but providing evidence that “[w]hile the MISC tapes could contain some emails in the form of .pst files, they should mostly contain other file types and systems-related data, such as TMW data, client records, invoicing, etc. Indeed, the MISC tapes could store information from servers that are wholly irrelevant to this case--as did two other MISC tapes [Western] attempted to access. Without restoring the tapes, however, it is impossible to know exactly what data is stored on them.” Declaration of Jeffrey Stevens [Doc. # 550-6] at ¶24 (original emphasis).
Western objects to the EEOC's assertion that it “destroyed” the ESI of 12 custodians, and any implication that it despoiled evidence. According to Western, the 12 deleted email accounts were associated with custodians who left the employ of Western before any duty to preserve arose as a result of the EEOC's investigation and suit, and were deleted consistent with Western's record retention policies and practices. See Doc. # 550-10 at Response to Interrogatory No. 45.
Western estimates the cost to restore and deduplicate the tapes at between $8,236 and $11,510, and the cost to prepare and search the tapes at between $48,000 and $108,237. See Response [Doc. # 550] at pp. 15-17. Meanwhile, the EEOC states that it will seek damages in the mid-seven figures, and potentially higher. See Master's Order [Doc. # 350] at p. 33.
I previously have criticized Western for failing to provide evidence supporting claims of burden, and have ruled against it on that basis. See, e.g., Master's Order [Doc. # 350] at pp. 27-28, 29, 31, 32; Master's Discovery Order On: EEOC's Motion to Compel Written Discovery [Doc. #538] at pp. 5-6, 8, 9-10.
The EEOC numbers them at 69. See Reply [Doc. # 570] at p. 20.