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Toussie v. County of Suffolk

December 21, 2007

ROBERT I. TOUSSIE AND CHANDLER PROPERTY, INC., PLAINTIFFS,
v.
COUNTY OF SUFFOLK, ROBERT J. GAFFNEY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUFFOLK COUNTY EXECUTIVE, ALLEN GRECCO, AND PEERLESS ABSTRACT CORP., DEFENDANTS.
ROBERT I. TOUSSIE, LAURA TOUSSIE, ELIZABETH TOUSSIE, MICHAEL I. TOUSSIE, PRAND CORP. F/K/A CHANDLER PROPERTY, INC., ARTHUR A. ARNSTEIN CORP., TOUSSIE LAND ACQUISITION & SALES CORP., AND TOUSSIE DEVELOPMENT CORP., PLAINTIFFS,
v.
COUNTY OF SUFFOLK, PAUL SABATINO, II, PATRICIA B. SIELINSKI, AND THOMAS A. ISLES, DEFENDANTS.



The opinion of the court was delivered by: Lindsay, Magistrate Judge

ORDER

I. INTRODUCTION

Before the court is the fifth in a series of motions in which the plaintiffs seek discovery sanctions for the failure of the Suffolk County defendants (the "County") to produce e-mails. In making this determination, the court has been challenged to reconcile a party's obligation to preserve relevant evidence with the unique nuances of electronically stored information. Guided by general spoliation principles, the court now determines whether the County should be penalized for losing and/or destroying its e-mails.

II. BACKGROUND

The plaintiffs, Robert Toussie and Chandler Property, Inc., began this action in October 2001, asserting that their civil rights had been violated when the defendants denied them the opportunity to purchase thirty-one parcels of real estate at the 2001 Suffolk County Surplus Auction. Amended Complaint 01-6716 [Doc. No. 45]. In April 2005, the plaintiffs, joined by others, commenced a second action asserting similar claims under 42 U.S.C. §1983. Complaint 05-1814 [Doc. No. 1]. The 2005 complaint alleged that the defendants violated the plaintiffs' civil rights when they blocked the sale of 15 parcels in 2002, the sale of adjacent property in 2003, and barred the plaintiffs' attendance from public auctions in 2004. As they had in the 2001 complaint, the plaintiffs also asserted several state law claims including, among other things, breach of contract, unjust enrichment, and defamation. On May 18, 2007, the court consolidated the 2001 and 2005 actions in the interest of judicial economy.[Doc. No. 182].

The e-mail dispute was first brought to the court's attention in August 2006, several months before the motion for consolidation had been decided. By letter application, the plaintiffs moved to compel the County to supplement its response to the plaintiffs' First Request for the Production of Documents. [Doc. No. 112]. Counsel for the plaintiffs argued that the County had failed to perform a diligent search for responsive documents, evidenced by the fact that it had only produced two e-mails. Id. at 1. In an effort to resolve the dispute, the court held a conference on September 5, 2006. During the conference, counsel for the County suggested that since it was "more the exception than the rule," that employees were "communicating be email," a further search was unlikely to uncover additional e-mails. 9/5/06 Tr. at 11. Because it became clear that the County had failed to conduct a system wide search for responsive e-mails, the court directed the County to have its Information Technology Department search the County's servers for responsive e-mails. [Doc. No. 120].

On October 31, 2006, the plaintiffs moved for sanctions pursuant to Fed. R. Civ. P. 37(b)(2)(A)*fn1 , contending that the County had willfully failed to comply with the court's September 5th ruling, and subsequent October 10, 2006 order, which directed the County to supplement its production of e-mails. [Doc. No. 133; Doc. No. 51, CV 05-1814]. In response, the County submitted an affidavit from Douglas Miller ("Miller"), its Director of Management Information Services, explaining that the County lacked the resources to perform the court ordered search for additional e-mails. [Doc. No. 138, Ex. E]. Miller explained that the County did not have a system for archiving e-mails. Specifically, he indicated that:

It is important to understand the significant difference between backed up data and archived data. Our data backup system is designed to save data in the case of emergency situations where data is lost and needs to be restored. Data is backed up in tape format each month. An archiving facility assembles e-mail into a form that can be retained in a searchable format over a period of time. Since the County has no archiving facility, only data backup tapes are available to be searched.

Backed up data has to be restored to its original location to be accessed. . . . Consequently, it would be necessary to purchase hardware and software necessary to create a duplicate non-production backup system and storage staging area, at a cost of approximately $20,000. It would also be necessary to purchase hardware and software necessary to create a non-production e-mail server to allow the restored data to be accessible, at a cost of $12,000.

Miller Aff. at ¶¶ 4-5. Miller noted that before 2006, back up tapes were not labeled or catalogued, which required that each tape be fully copied for review. He added that because the County's current back up system used different size tapes, the copying of any back up tapes would require new equipment and take as much as 1700 man hours to search. Id. at ¶¶ 6-9.

Upon receipt of the County's response, the court held another conference on November 21, 2006. At that conference, the court expressed its exasperation with the County's position by noting, "You can't just throw up your hands and say we don't store [e-mails] in an accessible form and then expect everybody to walk away." "The question is, how can a plan be implemented to provide for some production." 11/21/06 Tr. at 3. After narrowing the scope of the e-mail search, the court issued an order directing the County to prepare a search plan. [Doc. No. 151]. The search plan was to include an estimate of the cost, manpower, and time needed to conduct a search for e-mails responsive to 35 search terms on the servers of five key County departments for the period May, 2001 thru January, 2006. Id.

By letter dated November 30, 2007, the County advised the court that in order to perform the search outlined on November 21st, it would be necessary to restore 470 back up tapes, which required a new system to be purchases at a cost of approximately $934,000. [Doc. No. 155]. The County estimated that the search would take 960 man hours to complete. Id. The County also noted that it had explored the possibility of hiring an outside consultant to perform the search and learned that to do so would cost between $617,000 and $672,000. Id.

The court held another conference on December 4th to address this issue. At this conference, the court reiterated its concern that, notwithstanding the County's clear obligation to preserve relevant e-mails, the County had taken no steps to preserve its e-mails or to store them in a manner which would permit ready access and review. 12/4/06 Tr. at 35-36. Of particular concern was Miller's testimony that back-up tapes were made at the end of each month and would not reflect e-mails deleted before the end of each month. Id. at 37-38. Notwithstanding these concerns, the court directed the parties to meet with their respective information technology consultants to discuss how to implement a better, and perhaps less costly plan, for this production. Id. at 39. The court further directed the parties to submit a joint amended search plan to the court. Id.

Pursuant to the court's order, the parties did participate in a telephone conference with their IT professionals on December 14, 2006. However, rather than submitting a joint search plan, the plaintiffs renewed their request for sanctions. [Doc. No. 161]. Based on information gleaned from the parties' conference call, the plaintiffs outlined examples of how the County had neglected their discovery obligations. The plaintiffs argued that:

1. The County had not considered the need to search for e-mails generated from the County Legislature despite their contrary statement in the November 30, 2007 search plan;

2. The County did not keep all of its electronic data backed up; rather, it had a practice of overwriting and deleting back up tapes even after the litigation had commenced;

3. The County's IT professional was still unable to answer questions during the call concerning the number of servers or the software programs used for back up tapes;

4. The County did not label or bar-code any of the back up tapes making it impossible to identify specific data on a particular back up tape;

5. The County included misleading information in the November 30th submission such as identifying back up tapes ...


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