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					                 Petcou v. C.H. Robinson Worldwide, Inc. 2008WL 542684 (N.D. Ga., Feb. 25, 2008)

Erica PETCOU, Terri Kuvach, Lynn Amorose,                            Civil Action No. 1:06-CV-2157-HTW-GGB
and Dana Mason,                                                      United States District Court, N.D. Georgia,
Plaintiffs.                                                          Atlanta Division




Feb. 25, 2008.


GERRILYN G. BRILL, United States Magistrate Judge.
                                                            Sjostrand Dep. at 43, 46).
*1 This employment discrimination action is
presently before the Court on Plaintiffs' Renewed           When an individual employee deletes an e-mail,
Motion to Compel [Doc. 39]. This Court previously           that e-mail can be easily retrieved for only 8 days
ordered Defendant to produce computer-generated             thereafter. (Sjostrand Dep. at 27-28). When an
reports of attempts by its employees to access adult        individual leaves Defendant's employ, his e-mails are
websites at its Atlanta North and Atlanta South             automatically deleted from Defendants' servers
branches during the relevant time period. The Court         after 10 days. (Id. at 46). While deleted e-mails can
also denied Plaintiffs' request for e-mail messages         be retrieved from back-up tapes, after these 8 or 10
with adult content. However, the Court allowed              day periods, the costs to do so are very high. To
Plaintiffs to file a motion for reconsideration with        conduct a search for e-mails with sexual content, a
respect to the e-mails after they had been given an         third-party vendor would have to look through the
opportunity to obtain evidence regarding Defendant's        e-mail of all of Defendant's approximately 5,300
burden of production. Plaintiffs filed a renewed            employees because Defendant does not have servers
motion to compel on July 18, 2007.                          dedicated to individual branches. (Doc. 22-2,
                                                            Ex. H, Petrie Decl. ¶ 4; Sjostrand Dep. at 47). Each
The specific discovery requests in issue are                back-up tape contains three to five days of e-mails.
Plaintiffs' Requests for Documents Nos. 9 and 10            The cost of retrieving e-mails from one back-up
which sought “any documents relating to or                  tape ranges from $325 to $365 per tape. The cost of
evidencing the presence of pornography in the               retrieving about two years' worth of e-mails for one
Atlanta North [or Atlanta South] branch, including          employee is approximately $79,300. (Doc. 39-3 at
but not limited to email....” In their renewed motion,      pp. 17-18 of 26, Sjostrand Decl. ¶ 5).
Plaintiffs request that Defendant produce “at a
minimum, documents showing any e-mails of a                 Defendant has met its burden of showing that deleted
sexual or gender derogatory nature sent from 1998           e-mails from the period relevant to this lawsuit
through 2006.”(Doc. 39-2, Brf. at 9).                       are not reasonably accessible because of undue
                                                            burden and cost. See Fed.R.Civ.P.26(b)(2)(B).1
The parties have presented evidence that the emails         “[T]he court may nonetheless order discovery from
of Defendant's employees are initially stored               such sources if the requesting party shows good
on Defendant's exchange servers. E-mails of                 cause, considering the limitations of Rule
Defendant's current employees that have not been
deleted by those employees may still be on
Defendants' server and may be retrieved without               “A party need not provide discovery
great expense. However, it is very unlikely that e-         of electronically stored information from
mails from the period relevant to this lawsuit, sent to     sources that the party identifies as not reasonably
or from individuals who were employed during that           accessible because of undue burden
period, are still on Defendants' servers. (See              or cost.” Fed.R.Civ.P. 26(b)(2)(B).
26(b)(2)(C).” Id. Rule 26(b)(2)(C) directs the Court      result of the destruction of evidence; (2) whether the
to consider, inter alia, whether “the burden or           prejudice could be cured; (3) the practical importance
expense of the proposed discovery outweighs its           of the evidence; (4) whether Defendant acted in good
likely benefit, considering the needs of the case, the    or bad faith; and (5) the potential for abuse if expert
amount in controversy, the parties' resources, the        testimony about the evidence provided by the
importance of the issues at stake in the action, and      spoliator were not excluded. 2 Flury v. Daimler
the importance of the discovery in resolving the          Chrysler Corp., 427 F.3d 939, 945 (11th Cir.2005).
issues.”                                                  “With regard to the fourth factor, [the] law does not
                                                          require a showing of malice in order to find bad faith.
*2 As an initial matter, the Court finds that             The court should weigh the degree of the spoliator's
Plaintiffs' discovery requests were extremely broad.      culpability against the prejudice to the opposing
The original requests were not limited by time,           party.” Flury, 427 F.3d at 946 (citations omitted).
sender, or recipient. Even as later revised by
Plaintiffs, the requests would require a search of all    In this case, Defendant deleted its employee's emails
e-mails of all of employees in the Atlanta North and      in accordance with its normal retention and
Atlanta South branches for a six-year period.             destruction schedule even after an EEOC complaint
Moreover, it is unclear how Defendant would               alleging company-wide sexual harassment had been
determine whether e-mails were “relating to or            filed in June of 2001. However, the plaintiffs in that
evidencing the presence of pornography” or were “of       case did not request company-wide preservation of
a sexual or gender derogatory nature” without             e-mails, nor did they provide Defendant with the
examining the content of each and every e-mail and        names of individuals in Atlanta whose e-mails
without making judgments about what constitutes           should be preserved. It does not appear that
pornography. Finally, although the e-mails would          Defendant acted in bad faith in following its
corroborate Plaintiffs' testimony regarding the           established policy for retention and destruction of
prevalence of pornography in the workplace, they          emails.
would provide little, if any, relevant information
that Plaintiffs themselves have not already               *3 Plaintiffs' lawsuit is primarily based on offensive
provided.                                                 comments and images on coworkers' computer
                                                          screens, as opposed to e-mails the Plaintiffs
For these reasons, the Court finds that the burden or     themselves received. If this case proceeds to trial,
expense of the proposed discovery as a whole              Plaintiffs will be able to describe what they heard
outweighs its likely benefit. Nonetheless, retrieval of   and saw. In addition, Plaintiffs have the computer
two narrow categories of e-mails appears unlikely         generated reports of attempts made by Defendant's
to cause undue burden on Defendant: (1) undeleted         employees to access adult websites during the
e-mails (if any), sent prior to 2007, by a current        relevant time period, which partially corroborates
employee who has been specifically named by               their testimony about offensive images on computer
Plaintiffs as having had sexually explicit material       screens.
on his computer; and (2) any e-mails with sexual
content sent or received by any of Plaintiffs' former     After considering the relevant factors, the Court
co-workers of which Defendant is currently aware          finds that sanctions for spoliation of evidence
and has retained. Defendant will be required to           would not be appropriate in this case. The degree of
produce e-mails in these two categories, but will not     Defendant's culpability is low, and the resulting
be required to search its back-up tapes.                  prejudice to Plaintiff is relatively minor given other
                                                          available evidence.
Plaintiffs also request sanctions for spoliation of
evidence. Spoliation is “the destruction or significant   In sum, Plaintiffs' Renewed Motion to Compel
alteration of evidence, or the failure to preserve        [Doc. 39] is GRANTED in part and DENIED in
property for another's use as evidence in pending or      part. Defendant is ORDERED to produce undeleted
reasonably foreseeable litigation.” West v. Goodyear      e-mails (if any), sent prior to 2007, of any
Tire & Rubber Co., 167 F.3d 776, 779 (2d                  current employee whom any Plaintiff in this action
Cir.1999)(citing Black's Law Dictionary 1401 (6th         has specifically named as having had sexually
ed.1990)); accord Silvestri v. General Motors             explicit
Corp., 271 F.3d 583, 590 (4th Cir.2001). In
determining whether a spoliation sanction is
warranted, the Court must consider the following          2
                                                           Expert testimony from Defendant is
factors: (1) whether Plaintiffs were prejudiced as a      not at issue in this case.
material on his computer. Defendant must
also produce any e-mails with sexual content sent
or received by any of Plaintiffs' former co-workers
of which Defendant is currently aware and has
retained. In all other respects, Plaintiffs' motion is


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