The opinion of the court was delivered by: Joel Schneider United States Magistrate Judge
This matter is before the Court on the "Motion for a Protective Order" [Doc. No. 178] filed by the State defendants. The Court has received plaintiffs' response [Doc. No. 184], defendants' reply [Doc. No. 188] and numerous supplemental letter briefs. [See, e.g., Doc. Nos. 199, 200, 202, 206, 207 and plaintiff's May 20, 2009 letter brief]. The issue has also been addressed at several court conferences. For the reasons to be discussed defendants' motion is GRANTED in part and DENIED in part.
Since this Order is primarily for the benefit of the parties, the Court will not set forth in detail the procedural and factual background of the case. The Court incorporates by reference the discussion in its Opinion granting plaintiffs' motion to compel discovery. See Major Tours, Inc. v. Colorel, C.A. No. 05-3091 (JBS/JS), 2009 WL 2413631 (D.N.J. Aug. 4, 2009). The essence of plaintiffs' complaint is that the defendants engaged in racial profiling and discrimination when they inspected plaintiffs' buses en route to Atlantic City, New Jersey.
Defendants' motion addresses plaintiffs' request for electronic discovery. Defendants seek a protective order regarding plaintiffs' request for copies of e-mail communications from the back-up tapes or archived e-mails maintained by the New Jersey Department of Transportation ("NJDOT"). Defendants claim the e-mails are "inaccessible" due to the cost and burden to retrieve them. Defendants want to limit e-mail discovery to their "in production" e-mails which has been completed. Plaintiffs challenge whether defendants' cost and burden estimates are accurate. Plaintiffs also argue the requested e-mails should have been preserved. Plaintiffs contend it is inequitable for defendants to argue it is costly and burdensome for them to retrieve their e-mails when they were under a duty to preserve them.
It is not inaccurate to characterize defendants' motion as a moving target. As more detailed information regarding defendants' electronic information is obtained, and as defendants produce their electronic documents, the issues in dispute become more focused. The Court's analysis will be based on its synthesis of the parties' submissions.
The relevant time period that has been used for discovery purposes is January 1, 2000 to December 31, 2007. In addition, the Court has determined "that September 11, 2003 was the date Defendants' duty to preserve relevant evidence was triggered." Major Tours, at *3. The universe of available backup tapes numbers approximately 2500. Defendants originally estimated it would cost in excess of $1 million to retrieve the requested e-mails. See Certification of Bruce K. Green ¶17, Doc. No. 178-3. This estimate did not account for the time and cost to review the responsive documents for privilege and relevancy. Defendants' Reply Brief at 11, Doc. No. 188. Defendants subsequently estimated the cost to harvest the requested e-mails at $1.5 million. See Doc. No. 206.
Plaintiffs are focusing a large part of their claims on the actions of the State's Commercial Bus Investigation Unit ("CBIU"). Prior to July 2003, the CBIU was part of the NJDOT. As of July 2003 the CBIU became part of the Motor Vehicle Commission ("MVC"). Defendants claim that since May 2005 "[a]ll emails system-wide [were] retained in their entirety." Reply Brief at 7, Doc. No. 188. Defendants also claim that from April 2003 to the present consecutive backup tapes exist for NJDOT e-mails on a monthly basis. Transcript of April 17, 2009 Hearing ("Tr.") at 35-37. The MVC server crashed in May 2005. Id. at 34. However, one full set of MVC backup tapes exist from April 2005 to the present, and everything after March 2006. Id. at 73. It is possible, but no one can know for sure until the backup tapes are searched, that the backup tapes may contain e-mails from 2000 to 2003 or 2004.
Approximately 200 "scattered" NJDOT backup tapes exist between 2000 to April 2003. Id. at 38.
As to the e-mail production that has been completed, defendants searched the e-mail records of 37 custodians. See Account Creation Summary, Doc. No. 200-4. Defendants "harvested" approximately 152,000 e-mails form the live production mailboxes of the custodians. A total of 135,000 documents were reviewed, and 70,000 of these documents contained a hit on one or more of the 100 search terms agreed to by the parties. See Doc. Nos. 200, 202. Defendants produced a statistical summary of their e-mail collection efforts for its 37 custodians. See Doc. No. 207-4.
The resolution of defendants' motion is dependant on the application of Fed. R. Civ. P. 26(b)(2)(B). This Rule provides in pertinent part:
(B) Specific Limitations on Electronically Stored Information
A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting ...