It Takes More Than “Implications and Innuendo”

to Require the Costly Production of Inaccessible Data

United States ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225 (S.D. Cal. 2015)

In this False Claims Act matter, the court considered and denied a request for the production of backup tapes in native format, active files in native format, and metadata.

Earlier in the case, the court had curtailed the plaintiffs’ request for the same information, but they renewed their request in a motion to reconsider. Instead of adducing new evidence, as is usually required to succeed on a motion for reconsideration, they simply argued that the e-mails they requested were relevant for a number of reasons. However, as the court noted, “[i]n a most discordant failing, the Plaintiffs’ Request makes no mention of the cost associated with this particular ESI’s recovery and production.”

The defendants opposed the plaintiffs’ requests, which they claimed “simply regurgitate” earlier arguments that the court had rejected. In addition, they suggested the court’s earlier order providing limited discovery “already gives Plaintiffs every likely relevant email with a nugget’s worth of data.”

The court refused to grant the plaintiffs’ request, finding that there was no injustice in failing to grant their prior request for the e-mails from backup tapes. The court found the plaintiffs’ relevancy argument misplaced, as it had already “assumed [the e-mails’] relevance and discoverability.” Instead, the court objected to the request because of its “sheer cost” based on “[t]echnological feasibility and the realistic costs of preservation, retrieval, production, and review.” The court asserted that evidence from backup tapes is always considered inaccessible. It then balanced the costly production of inaccessible electronically stored information (ESI) from the defendants’ servers and backup tapes against its, at best, “only tangential relevance” and found no reason to require the defendants to undertake its production:

In spite of Plaintiffs’ belief to the contrary, the Rules do not compel Defendants to produce inaccessible ESI in the form most helpful for Plaintiffs’ case at Defendants’ expense. No, the Rules compel no more than production of ESI in its usual form, with Plaintiffs themselves obligated to pay for the production of inaccessible ESI in an accessible form.

Furthermore, the plaintiffs could not adduce any credible evidence of the intentional spoliation of evidence:

[T]hey do not explain how Defendants’ storage process is unusual or even how this ESI is uniquely inaccessible, the Defendants having adopted a procedure few businesses have themselves endorsed. Nor do they show that Defendants, even if aware of their potential liability, deliberately created a policy of storing ESI that would make particularly relevant emails suddenly inaccessible to any and all potential litigants. Indeed, even if litigation was threatened, Plaintiffs would have to provide some indicia of any such purpose for cost-shifting to be foreclosed and spoliation to be found. To wit, whether their accusations are true or not, they must be supported by some credible evidence, not implications and innuendo, for a defendant remains free to operate their business in its ordinary course in the absence of the reasonable probability of a certain lawsuit and so long as it does not render data inaccessible purely with the intent of stymying such legal action. Plaintiffs needed something more to shift the balance; littered with unproven and unknowable assertions, their two motions do not do so.

Therefore, the court concluded that if the plaintiffs were not content with the volume of ESI from backup sources that they received they would have to “pay the price of production in the Native form they deem so invaluable for the prosecution of their own case.”

Finally, the court refused to grant the plaintiffs’ request for the production of metadata for accessible documents or the reproduction of those documents in native format because their requests for production did not specifically ask for them and they could not articulate any specific reason why either was necessary.

United States ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225 (S.D. Cal. 2015)


The point of discovery is not to make document production as convenient as possible for the requesting party. Rather, considerations of accessibility and cost must be weighed against the value of the information. Here the resources required to obtain the data from the backup tapes—which likely would have cost more than $2 million—far outweighed the potential value of that data. The cost of this discovery was clearly disproportionate.

Perhaps the result would have been different had the defendants taken extraordinary steps to render their data inaccessible, but here, they followed ordinary data retention protocols.