Maintaining the parent-child relationship in productions is a long recognized requirement. A Defendant that switched archiving applications learned how tricky preservation can be in a lawsuit when attachments were not included with the parent email in a production.
Here is what happened: The Defendant used Mimosa to achieve email prior to a lawsuit being filed against them. Messages that had attachments that were over a megabyte were replaced with a slip sheet that had a link to the archived attachment in a process called “stubbing.” OptoLum, Inc. v. Cree, Inc., 2018 U.S. Dist. LEXIS 217678, at *2 (M.D.N.C. Dec. 28, 2018). The stubbing setting was eventually turned off due to technical issues. Moreover, some of the attachments were corrupted and could not be recovered. The future Defendant began migrating to a cloud-based Microsoft Exchange system one year before the lawsuit was filed, which was completed after the lawsuit began. The Defendant preserved the Mimosa system per the litigation hold for the lawsuit. OptoLum, Inc. at *3.
Once the Plaintiff began finding email messages with missing attachments, the parties found themselves battling over proportionality analysis in a motion to compel.
Proportionality requires a Court to account for “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” OptoLum, Inc. at *16, citing Fed. R. Civ. P. 26(b)(1).
The Defendants argued that it would cost $13,500 to restore the Mimosa archiving system. They further argued that some of the allegedly missing documents had been produced and that documents containing the same of similar information had also been produced over a year earlier. OptoLum, Inc. at *16-17.
The estimated damages in the cases were between $1.5 to $3.15 million. Even if on the low side of $1.5 million, a $13,500 cost to restore the Mimosa system would not be disproportionate to the case. OptoLum, Inc. at *17-18. The Court recognized that cost was only an estimate of whether the missing attachments exist and did not include the cost of producing any restored ESI or document review costs. That being said, privilege and responsiveness review had already been produced for the parent emails, so the document review process could include matching duplicates to restored email with attachments. OptoLum, Inc. at *18 (commentary on how to identify duplicates with attachments my own).
The Court ultimately held that while the Defendant did have to restore the archiving system, the parties were to split the cost. The Court explained that there was undue burden on the producing party, that the entire exercise could be futile, and that the parties had spent more on motion practice than actually restoring the data.
Bow Tie Thoughts
There is a lot to be said for cost benefit analysis on whether to just do the work or litigate an issue. There are lawyers out there who are willing to die on every beach in a discovery dispute. There are others who realize the cost of slugging it out in court is more expensive than simply fixing a production. There might be valid reasons for resisting a motion to compel, but it is worth the time to look at a balance sheet before escalating from meet and confers to motions to compel.
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, the Web 100 from 2017 to 2018, 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.