The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge
Plaintiff moves for sanctions including reasonable attorney's
fees and costs against defendant and defendant's counsel,
McDermott Will & Emery LLP ("MWE"), pursuant to Federal Rules of
Civil Procedure Rules 26 (g) (3), 37 (b) (2) and 37 (c) (1),
28 U.S.C. § 1927 and the inherent powers of the court. For the
reasons set forth below, plaintiff's motion is denied.
Plaintiff's motion arises out of a contentious discovery
dispute concerning the production of various e-mails in
In brief, the complaint in this matter alleges gender
discrimination in violation of Title VII (Complaint ("Compl.") at
¶ 1). Plaintiff was an Associate Director/Vice President in the Equity Markets Group of WestLB from May 1999 to June 2003 and
again from September 2003 to April 2004 (Compl. ¶¶ 9, 44, 48,
57). Plaintiff claims, inter alia, that similarly situated
male employees were consistently given higher pay than female
employees, including plaintiff, and that she was ultimately
terminated because of her gender (Compl. ¶¶ 1, 65, 67, 69).
The current dispute stems from plaintiff's first request for
production of documents, served on February 18, 2005 (Plaintiff's
Memorandum of Law in Support of Plaintiff's Motion for Sanctions
Under Rules 26 (g) (3), 37 (b) (2), and 37 (c) (1) of the Federal
Rules of Civil Procedure, 28 U.S.C. § 1927, and the Inherent
Powers of the Court ("Pl. Memo."), Docket Item 37, at 2). There,
plaintiff requested that seventeen current and former WestLB
employees' e-mail accounts be searched for certain terms alleged
to refer to plaintiff in particular or that are sexist in
general. The request also sought e-mails relating to
discrimination against other women at WestLB and e-mails showing
that men were more highly compensated than women (Plaintiff's
First Request for Production of Documents, annexed as Exhibit 1
to Affidavit of Dawn J. Groman, Esq., sworn to October 3, 2005
("Groman Aff."), Docket Item 43, at ¶¶ 10-21, 25-26, 31-32).
Defendant objected to many of the requests for electronic
discovery claiming they were overly broad and would result in
undue burden. The parties were unable to agree on the scope of electronic discovery and sought the intervention of the Court
to resolve the dispute (Groman Aff. ¶ 2).
At a June 8, 2005 discovery conference before the Honorable
William H. Pauley, III, United States District Judge, defendant
claimed that e-mails sought by plaintiff are not readily
available because they are on back-up tapes and would, therefore,
be expensive to retrieve (June 8, 2005 Hearing Transcript at 4).
Following the conference, Judge Pauley referred the dispute to
On June 22, 2005, after meeting with counsel, I ordered
defendant to provide counsel for plaintiff with an affidavit
addressing the technical issues raised by plaintiff's discovery
requests for e-mails and other electronic communications.
Specifically, I directed the parties' attention to Zubulake v.
UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003), and further
directed that the affidavits address the devices defendant used
to store data and the seven factors identified in Zubulake.
Defendant was also ordered to produce a deposition witness who
could discuss the issues to be addressed in the affidavit and to
restore, as a sample, the back-up tape or tapes that contain
e-mails from February 2003 into a readable, searchable format
(June 22, 2005 Order ("6/22/05 Order"), Docket Item 19).
On June 27, 2005 defendant's counsel, MWE, sent two affidavits
to plaintiff's counsel, with copies to me. The affidavits were executed by Kenneth Bigelow, WestLB's chief
information officer, and Stuart Hanley, an electronic evidence
consultant employed by Kroll Ontrack ("Kroll"), "a consulting
firm that specializes in the retrieval and restoration of
electronic information stored on back-up tapes and other media
storage devices" that was hired by defendant to assist in
restoring and searching defendant's back-up tapes (Affidavit of
Stuart Hanley, sworn to June 27, 2005 ("Hanley Aff."), annexed as
Exhibit 5 to Declaration of Carmelyn P. Malalis, Esq., in Support
of Plaintiff's Motion for Sanctions Under Rules 26 (g) (3), 37
(b) (2), and 37 (c) (1) of the Federal Rules of Civil Procedure,
28 U.S.C. § 1927, and the Inherent Powers of the Court dated
September 12, 2005 ("Malalis Decl."), Docket Item 30, at ¶¶ 1-2).
MWE transmitted a signed cover letter with the affidavits stating
"enclosed are the Affidavits . . . that address the technical and
cost issues raised by Plaintiff's discovery requests" (June 27,
2005 Letter from Andrew S. Baron, Esq., to Kathleen Peratis,
Esq., annexed as Exhibit 3 to Malalis Decl.).
Bigelow's affidavit stated that retrieving the e-mails
plaintiff had requested "will be extremely costly, time-consuming
and unduly burdensome" and that defendant has hired Kroll to
assist in collecting any responsive e-mails (Affidavit of Kenneth
Bigelow, sworn to June 27, 2005 ("Bigelow Aff."), annexed as
Exhibit 4 to Malalis Decl., at ¶ 3). He also stated that defendant stores its e-mails on a Lotus Notes e-mail server
("server" or "Database") which "exists on a computer server and
is accessible through each individual user's e-mail account"
(Bigelow Aff. ¶ 5). According to Bigelow, the e-mails are
backed-up on tapes to prevent the permanent loss of data and for
long-term storage; the back-up tapes are essentially a "snapshot"
of the e-mail server at a point in time. Accordingly, Bigelow
stated that any e-mail that is sent or received and then deleted
before a snapshot can be taken will not be stored on a back-up
tape. Furthermore, Bigelow noted that because some employees
store e-mails for extended periods of time and the back-up tapes
cannot differentiate between new and old data, the tapes contain
copies of many identical e-mails. Bigelow stated that there is
software available that can segregate identical e-mails to
prevent the production of copies, but the more copies there are,
the longer the process of detecting and removing the copies will
be (Bigelow Aff. ¶¶ 5-6, 8, 10).
Bigelow stated that defendant also creates and stores daily,
monthly and annual back-up tapes and has approximately 3,754 of
such back-up tapes covering January 2, 2004 to January 4, 2005,
21 tapes in total for "year-end" 2003, 35 tapes for "year-end"
2004 and 42 annual back-up tapes for 2001 and 2002 (Bigelow Aff.
¶ 10). Bigelow also discussed an e-mail system called "AXS-One."
AXS-One automatically stores e-mails from employees who are
registered broker-dealers. Bigelow estimated that it would take
approximately two weeks and $30,000 to search AXS-one (Bigelow
Aff. ¶ 7).
Hanley's affidavit described the costs and amount of time it
will take to restore back-up tapes. Hanley stated that, to search
data on back-up tapes, Kroll must restore the tapes by
"uncompressing" the data on each tape onto a computer server
(Hanley Aff. ¶ 9). Hanley estimated that it would cost
approximately $106,000 to restore defendant's 98 yearly back-up
tapes and $2.8 million to restore the more than 3,700 other
back-up tapes from 2004. The time it would take to restore each
tape varies by how much data is stored on the tape and Hanley
estimated that it could take approximately eight to ten hours to
"duplicate, restore and convert" an individual tape and two to
four weeks to "restore and convert" the 98 yearly tapes (Hanley
Aff. ¶¶ 9, 11-12).
Hanley also stated that Kroll had previously restored
defendant's 2002 back-up tapes but that the data was subsequently
recompressed (Hanley Aff. ¶ 12 n. 3).
Plaintiff deposed Bigelow and Hanley on July 1, 2005. Plaintiff
claims that it was not until the depositions that she learned
"that a large quantity of the e-mails Plaintiff had requested going back to 2000 are already readily accessible and
readable on WestLB's databases and can be accessed just like
`opening any e-mail'" (Pl. Memo. at 6, quoting July 1, 2005
Deposition of Kenneth Bigelow ("Bigelow Dep."), annexed as
Exhibit 6 to Malalis Decl., at 93). Plaintiff also claims to have
learned at the depositions that copies of defendant's ...