Peskoff v. Faber, Case No. 04-526 (D.D.C. Feb. 21, 2007)
In this case, Plaintiff (Peskoff) sued his former business partner Defendent (Faber) for fraud, breach of fiduciary duty, breach of contract, conversion, unjust enrichment, and civil RICO violations.
Part of Plaintiff's motion to compel production of documents was resolved in the court's July 11, 2006, order. (Here's the July 11, 2006, memorandum opinion.) The remaining issue was Plaintiff's request for additional production of emails that he wrote or received while at the subsidiary that "likely contain information relating to the ownership issues in this case, the suspect transactions identified in the Complaint and other relevant matters." Plaintiff claimed that the electronically stored information (ESI) that Defendant produced did not include any emails Plaintiff "received or authored between mid-2001 and mid-2003, nor do the disks contain authored emails that should be stored in the Sent folder of [Plaintiff's] former email account."
Defendant did not dispute the relevancy of the emails but disagreed with Plaintiff as to "(1) the existence of any other emails in addition to those already produced, and (2) the financial responsibility of determining if and where additional emails may be located." In the court's previous order, it suggested five places where the additional emails could be located: (1) Plaintiff's email account; (2) the email accounts of other company personnel (3) Plaintiff's computer or any other depository for company emails; (4) other places within Plaintiff's computer, such as its "slack space"; and (5) backup tapes. Defendant did not challenge the court's suggestion or conduct any of the suggested searches.
Citing the recently amended Rule 26 of the Federal Rules of Civil Procedure and Zubulake (III), the court stated that the producing party must produce accessible ESI at its own cost and should not be relieved of its obligation simply because it may take time and effort to conduct a comprehensive search.
[A]ccessible data must be produced at the cost of the producing party; cost-shifting does not even become a possibility unless there is first a showing of inaccessibility. Thus, it cannot be argued that a party should ever be relieved of its obligation to produce accessible data merely because it may take time and effort to find what is necessary.
Applying the foregoing rules, the court ordered Defendant to conduct a comprehensive search of all depositories of ESI, and to provide an affidavit of the person who conducts the search, explaining the search process.
The defendant must therefore conduct a search of all depositories of electronic information in which one may reasonably expect to find all emails to Peskoff, from Peskoff, or in which the word “Peskoff” appears. Once the search is completed,defendant must make the results available to plaintiff in the same format as the electronically stored information was previously made available. Defendant must also file a statement under oath by the person who conducts the search, explaining how the search was conducted, of which electronic depositories, and how it was designed to produce and did in fact produce all of the emails I have just described. I must insist that the person performing the search have the competence and skill to do so comprehensively. An evidentiary hearing will then be held, at which I expect the person who made the attestation to testify and explain how he or she conducted the search, his or her qualifications to conduct the search, and why I should find the search was adequate.
