McPeek v. Ashcroft
202 F.R.D. 31 (2001)
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Rule of Law:
In determining whether to compel the discovery of inaccessible electronically stored information, such as backup tapes, courts should employ a balancing test weighing the marginal utility of the proposed search against its cost and burden.
Facts:
- Steven McPeek began working for the Bureau of Prisons (BOP) in 1986.
- Between 1990 and 1992, McPeek alleged that J. Michael Quinlan, then-Director of the BOP, sexually harassed him.
- On September 30, 1992, McPeek and the Department of Justice (DOJ) entered into a confidential settlement agreement, which included McPeek's transfer to a different division within the DOJ.
- McPeek claims that despite the confidentiality agreement, his new colleagues were aware of his prior harassment complaint and retaliated against him.
- McPeek further alleges that he suffered renewed retaliation after he hired counsel in July 1998 to pursue formal legal action.
- During the ensuing lawsuit, McPeek sought to compel the DOJ to search its backup tapes for deleted emails and documents that might prove his retaliation claims.
- The DOJ's backup tape system was designed for disaster recovery, not for archival purposes, making the data un-indexed and difficult to search.
- Restoring and searching even a single backup tape was a time-consuming and expensive process.
Procedural Posture:
- Steven McPeek (plaintiff) filed a lawsuit against the Department of Justice (defendant) in the United States District Court for the District of Columbia, alleging unlawful retaliation.
- During the discovery phase of the litigation, McPeek served discovery requests seeking electronic documents, including those that might exist on backup tapes.
- After the DOJ searched its active systems but refused to search its backup tapes, McPeek filed a motion to compel the search and production of data from the tapes.
- The DOJ opposed the motion, arguing that such a search would impose an undue burden and expense.
- The discovery dispute was presented to a United States Magistrate Judge for resolution.
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Issue:
Must a responding party in discovery bear the expense of searching and restoring inaccessible electronic data, such as backup tapes, for potentially relevant evidence?
Opinions:
Majority - Facciola, United States Magistrate Judge
No, a responding party is not automatically required to bear the expense of searching and restoring inaccessible electronic data. Instead of adopting a categorical rule, courts should apply a balancing test based on the economic principle of 'marginal utility.' This approach weighs the likelihood that a search will uncover relevant information against the cost and burden of conducting that search. The court reasoned that making the producing party always pay for such searches would create a perverse incentive for requesting parties to make overly broad demands, effectively using the high cost of discovery as a weapon to force settlement. Conversely, always shifting the cost to the requesting party would be unjust if the information sought is highly likely to be relevant. To strike a fair balance, the court ordered a limited 'test run' search of the backup tapes for a key individual's emails during a specific, relevant time period. The results and cost of this initial search would then inform any future decisions about expanding the scope of discovery.
Analysis:
This case is a foundational opinion in the field of electronic discovery (e-discovery). It rejects a rigid, one-size-fits-all approach and instead establishes a flexible, fact-specific balancing test for handling discovery of inaccessible data. Judge Facciola's introduction of the 'marginal utility' concept provided a crucial analytical framework that influenced the development of proportionality in discovery, which was later codified in Federal Rule of Civil Procedure 26(b)(1). The decision's practical 'test run' solution has been widely adopted by other courts as a way to manage the potentially crippling costs of e-discovery while still allowing parties to obtain relevant evidence.
