In the qui tam action United States ex rel Guardiola v. Renown Health, et. al., Case No. 12-00295 (D. Nev., Aug. 25, 2015), Plaintiff sought production of certain emails from Defendant based upon search terms, custodians, and other parameters agreed upon by the parties. The court set the relevant time period from which Defendant needed to produce responsive emails as June 1, 2006 through June 30, 2014 (an eight-year period).
Defendant produced emails pursuant to the requests except that it did not produce emails from April 2011 to February 2013 (which the court referred to as the “gap period”). Defendant asserted that it had begun using a new backup service and implemented a new document retention policy at that time which made it burdensome to produce data from backup tapes from the “gap period.” Defendant also asserted that it had produced documents from a restored March 2011 backup tape, which Defendant believed had the most relevant information for the litigation. Defendant restored the tapes for that month using a third-party service (at a total cost of $35,000, not including costs for review and production). Due to the cost of restoring that one month, Defendant refused to restore the rest of the backup tapes (which it estimated would cost it nearly $250,000 to restore, review, and produce). least $248,000, which includes data processing and contract attorney review. .
Plaintiff moved to compel production of the “gap period” emails, asking the court to order Defendant to produce the emails (which Plaintiff asserted are highly relevant to her claims). The court agreed with Plaintiff and ordered the production, holding that producing the emails would not place an undue burden on Defendant (noting that the burden is to show undue burden or undue cost “but not both” and held that Defendant had shown neither). The court further stated that Defendant was responsible for its decision to use an “archival/backup solution that did not maintain ESI in an indexed or otherwise searchable manner.” Finally, the court refused to order cost-shifting, stating that it could only appropriately shift costs when “ESI is reasonably inaccessible due to undue burden or undue cost,” which the court concluded did not exist here.