UPS Avoids ‘Undue Burden’ of Producing Archived Backup Tape
Solo v. United Parcel Serv (UPS). Co., No. 14-12719, 2017 U.S. Dist. LEXIS 3275 (E.D. Mich. Jan. 10, 2017).
The court denied the full extent of the data that the plaintiff, Joe Solo, requested in its motion to compel, finding it not proportional in light of the “undue burden” on the defendant, UPS, of restoring archived data from backup tapes. The court also ordered the parties to either use the defendant’s proposed sampling method or to “devise a mutually agreeable methodology for obtaining a sampling of the requested data.”
In this putative consumer class action suit, the plaintiff, Joe Solo, alleged that the defendant, United Parcel Service Co. (“UPS”), breached its contract with shipping partners by overcharging for shipments with a declared value over $300. Solo filed this motion to compel UPS to answer its interrogatory. Specifically, he asked UPS to enumerate the direct shipments and third-party retailer shipments valued at $300 or more for each state for periods going as far back as 2008.
UPS countered that providing the requested information “would be excessively burdensome in terms of  time, manpower, and costs.” The company maintains current shipping data “in a ‘live’ format,” rendering it “easily accessible electronically.” But UPS maintains live data only briefly because of the “enormous amount of data” it processes. After that short window, the company archives its data on backup tapes. UPS estimated that “it would take at least six months just to restore the archived tapes…at a cost of $120,000 in labor.” That estimate did not include the time or cost of analyzing the extracted data.
The court first evaluated the appropriate time frame for production. As a national lawsuit, “the statutes of limitations vary from state to state.” However, UPS’s terms of service require customers to notify the company of a billing dispute within six months. Therefore, the court found that six months would be “the time period most likely to be deemed relevant” if the classwide suit proceeded. Limiting the interrogatory response to that six-month window also lowered the cost of responding.
The court then considered that “parties have a heightened duty of cooperation” under the 2015 amendment to Federal Rule of Civil Procedure 1. According to the Advisory Committee’s Note to the rule, parties share the responsibility with courts to “construe and administer [the] rules to secure the just, speedy, and inexpensive determination of every action.” Additionally, amended Rule 26(b)(1) “emphasizes the principle of proportionality.” Combining these rules, the court observed, “[e]ffective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure.”
Within that framework, the court concluded that UPS was cooperatively providing proportional information. UPS’s arguments convinced the court that “producing package-specific information going as far back as 2008 would be extraordinarily burdensome, particularly at this stage of the proceedings.” The court emphasized UPS’s “valid business reason for maintaining ‘live’ data for a limited period of time and storing older data on backup tapes.” Further, the court pointed to established precedent that “information stored on backup tapes is not ‘reasonably accessible’” for discovery.
Given the inaccessibility of older data and the early stage of the case, the court found that the burden of the request was disproportionate to its potential relevancy. Limiting the data to a six-month window would allow Solo to develop his case without precluding him from requesting more data in the future. Similarly, the court found that “[t]he appropriate balance between [Solo’s] need for the information and the burden of producing it may be struck through statistical sampling, without prejudice to production of the entire set of data” later.
UPS had originally produced an estimate “based on a method that extrapolated ‘live’ data from a more recent period.” That method, requiring the use of proprietary information, was filed under seal. “[N]ow that a protective order has been entered,” the court ordered, “UPS will disclose its methodology under the ‘attorneys’ eyes only’ provision,” under which the “parties will meet, confer, and agree on a mutually acceptable sampling methodology.” The court required UPS to pay for the production of documents under that agreed methodology. The court further noted that if the parties failed to agree on the sampling method, Solo could request the entirety of the available data at his own cost.
Accordingly, the court granted the motion to compel in part, while denying it in part, without prejudice.
This case highlights the proportional and cooperative balance that litigants should strike when requesting discovery. While parties will never receive information that they don’t explicitly request, Solo’s initial ask here was too broad. To avoid this error, take these steps:
- Plan the stages of your case.
- Align your discovery plan with those stages.
- Meet and confer with your opponent to agree on the scope of discovery and document your efforts.
- Advise the court fully about the relevance and proportionality of each category of information that you request. Here, Solo did not provide sufficient justification to counter UPS’s arguments about the burden of complying with the full interrogatory.
UPS’s argument also underscores a business’s incentive to move historical data onto backup tapes whenever a legitimate purpose supports such archiving. Had more of its information been maintained in an accessible “live” format, the court would almost certainly not have found an undue burden on UPS. Because courts broadly view data on backup tapes as “not reasonably accessible,” however, historical information can be somewhat shielded from discovery.
Finally, and perhaps unintentionally, the court has now provided an additional advantage to UPS as discovery proceeds. UPS has already devised a sampling methodology. If Solo agrees to that method, UPS will bear the costs of producing data as usual. But the court’s order produces a disincentive for UPS to be flexible, since a failure to agree on a sampling method could shift the full cost of production onto Solo.
Convincing the court early on that your arguments are sound, proportional to the case, and cooperative can reap rewards that compound as the case progresses.