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Baker v. Gerould

March 27, 2008


The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge



Plaintiff, an employee of the New York State Department of Environmental Conservation (the "DEC"), commenced this action under Sections 1983 and 1985 of Title 42 of the United States Code, alleging that defendants failed to promote him to the position of Captain in retaliation for having exercised his constitutional rights. (Docket # 56). By order dated January 27, 2004, the above-captioned matter has been referred to the undersigned for the supervision of pretrial discovery and the hearing and disposition of all non-dispositive motions, pursuant to 28 U.S.C. §§ 636(b)(A) and (B). (Docket # 15).

On November 1, 2006, plaintiff filed a motion to compel, inter alia, the production of electronic communications ("emails") between and among the parties. (Docket # 71). Initially, defendants responded that they would produce all responsive emails, and some such communications apparently have been produced. (See Docket ## 86, 92). Following a dialogue between counsel concerning the scope of the production, plaintiff renewed his motion, challenging the adequacy of the production. (Docket # 86).

Following oral argument on the motion, this Court directed defendants to submit an affidavit describing the search undertaken to locate the requested emails. In response, defendants filed an affidavit of the Director of the DEC's Division of Information Services, Leslie Brennan. Instead of explaining the steps undertaken to search for the emails, however, the affidavit only described the work that would be entailed in restoring deleted data from backup sources. (Docket # 97). Although Brennan evidently assumed that as a result of the systematic, automatic deletion of unsaved emails generated more than twelve months earlier, any additional responsive emails between the parties were not reasonably accessible, his affidavit does not address what efforts, if any, were employed to search for such emails from accessible sources.

Id. For example, Brennan's affidavit does not identify whether any search was undertaken to locate archived or saved emails, which, as he explained, was one method available to users to avoid deletion of emails.

After reviewing Brennan's affidavit, counsel for plaintiff renewed his argument that defendants should be compelled to search for additional emails, even if such a search would require defendants to expend resources in order to restore deleted data. (Docket # 99). For the next several months, this Court and counsel attempted to reach a negotiated resolution of the dispute. Those efforts were ultimately unsuccessful, and counsel for the plaintiff now requests a judicial resolution of the dispute. (Docket # 119).


The threshold requirement of discoverability under the Federal Rules of Civil Procedure is whether the information sought is "relevant to any party's claim or defense."

Fed. R. Civ. P. 26(b)(1). To be discoverable, the information "need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."

Id. The relevance standard is necessarily broad in scope in order "to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citation omitted). See Daval Steel Products, a Div. of Francosteel Corp. v. M/V Fakredine, 951 F.2d 1357, 1368 (2d Cir. 1991) (parties entitled to discovery of any matter that appears "reasonably calculated to lead to the discovery" of evidence) (quoting Fed. R. Civ. P. 26(b)(1)); American Banana Co. v. Republic Nat'l Bank of New York, 2000 WL 521341, *2 (S.D.N.Y. 2000) ("Rule 26 plainly allows discovery related to the claims and defenses of any party"). Indeed, in the context of employment cases, the Supreme Court has explained that "liberal civil discovery rules give plaintiffs broad access to employers' records in an effort to document their claims." Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989).

Potentially discoverable evidence, of course, includes electronically stored information, such as email communications between and among the parties. Fed. R. Civ. P. 26(b)(2)(B). See, e.g., Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 317 (S.D.N.Y. 2003) (Scheindlin, J.) ("electronic documents are no less subject to disclosure than paper records") (quoting Rowe Entertainment, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 428 (S.D.N.Y. 2002)). If relevant electronically stored information is not reasonably accessible, the responding party may resist its production upon a showing that such information is "not reasonably accessible because of undue burden or cost." Fed. R. Civ. P. 26(b)(2)(B). Even if such a showing is made, the court retains the discretion for "good cause" to order disclosure of such material. Id. According to the Advisory Committee's notes to the 2006 amendments to Rule 26(b)(2),

The decision whether to require a responding party to search for and produce information that is not reasonably accessible depends not only on the burdens and costs of doing so, but also on whether those burdens and costs can be justified in the circumstances of the case. Appropriate considerations may include: (1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed ...

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