The Confirmation of Existence…Of Responsive ESI

EEOC v. Jp Morgan Chase Bank, N.A., is gender discrimination case with multiple discovery disputes.  EEOC v. JP Morgan Chase Bank, N.A., 2011 U.S. Dist. LEXIS 34409, 6-7 (S.D. Ohio Mar. 30, 2011).

One request for production called for “[w]hatever hardware, software, files, metadata, and properties in Defendant’s possession that shows Aimee Doneyhue herself created the purported resignation letter dated 4/30/08.” JP Morgan Chase Bank, N.A., at *6.

The Defendant countered that the former employee’s computer had been reassigned and that the Defendant was “unable” to recover any responsive information, but would supplement their response if any ESI later recovered.  Id.

The EEOC argued this was inadequate, because the Defendant did not state if it “ever tried to recover an original or native file from a backup tape, archived document, or hard drive.”  JP Morgan Chase Bank, N.A., at *6-7.

The EEOC quoted testimony from the Defendant’s IT Director/Vice-President that the Defendant had the technology to forensically recover deleted documents from the former employee’s hard drive.  JP Morgan Chase Bank, N.A., at *7.

The Court agreed with the EEOC and granted the motion to compel.  It was not clear what steps the Defendant had taken to recover the responsive information.  Id. As the Court explained:

The EEOC is entitled to confirm whether or not this information exists, either through Chase’s own search or through production of the requested storage devices to the EEOC for examination.

JP Morgan Chase Bank, N.A., at *7.

Bow Tie Thoughts

It is unlikely a party will be required to prove a negative, such as data does not exist, however, a party must explain what steps were taken to preserve and search for responsive electronically stored information.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016 and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.