Starbucks Corp. v. ADT Sec. Servs., 2009 U.S. Dist. LEXIS 120941 (W.D. Wash. Apr. 30, 2009).  In a breach of contract and fraud case, Starbuck's brought this action based on ADT's installation of  proprietary security systems in violation of the contact between the two parties.  After filing the action, Starbucks filed a motion to compel to obtain archived e-mails from the defendants. The Court discussed in detail ADT's archived e-mail systems involving the storage of e-mail from 2003 - 2006. ADT argued the system was was "so cumbersome, . . . that it is not 'reasonably accessible because of undue burden or cost.'"  ADT argued it was not accessible because of their selection of an archiving system that failed in its essential function of allowing ESI to be searched.

In a court ordered deposition the ADT IT representative stated that it would cost $88,000 to restore the e-mail and would take 4 years. Six months later he estimated it would cost $ 834,285. Even after the Court learned that many of the DVD's which stored the e-mail were not proprietary, ADT's consulting company said it, "could cost several hundred thousands of dollars just to make the copies and thousands more to purchase a hardware system to house the data."  The consultant's estimate was not attached to the ADT pleadings.  In response, Starbucks consultant opined that it would cost $17, 850 from one vendor and $25,500 from another vendor to make the ESI available for searching. The Court noted that the ADT representative, "at every turn, provided exaggerated reasons and exaggerated expenses as to why ADT allegedly cannot and should not be ordered to comply with its discovery obligations. He simply is not credible."

In addition, the Court noted that ADT should have migrated its data to its now functioning archival system and failure to do so should not prejudice Starbucks. In citing to another case the Court noted, "'the Court cannot relieve Defendant of its duty to produce those documents merely because Defendant has chosen a means to preserve the evidence which makes ultimate production of relevant documents expensive' … "To permit a party to reap the business benefits of such technology and simultaneously use that technology as a shield in litigation would lead to incongruous and unfair results.'"

The Court also found that if the ESI was considered to be "not reasonably accessible" that it would find "good cause" to order production. In further explanation, the Court noted that Starbucks has attempted "to limit the burden on ADT by narrowly limiting the number of ADT employees or former employees involved and further providing search term filters for those persons. There is no evidence that it is attempting to leverage ADT's ESI problems."

As an alternative, ADT argued that instead of providing the e-mail Starbucks could depose the individuals in question. The Court rejected this argument and stated, "[s]imply deposing ADT personnel without benefit of the ADT's ESI does not allow Starbucks to discover what a witness knew, to challenge the testimony that he or she provides, or to provide the accurate contemporaneous thoughts of ADT decision-makers. . . . This route is hardly an alternative to deal with Starbucks's legitimate discovery needs."

The Court awarded attorney fees and other costs partially based on the fact that "ADT initially stated the data was inaccessible because it would cost $ 88,000 to produce. Subsequently, that figure climbed to ten times that amount."  (For a copy of the opinion click here . . .).

  Cross-reference:

• Arkfeld on Electronic Discovery and Evidence (2nd Ed.), § 7.4(G)(1), Not Reasonably Accessible — Rule 26(b)(2)(B) and § 7.9(B), Sanctions - Fed. R. Civ. P. 37

The cross-reference(s) is intended for owners of the Arkfeld on Electronic Discovery and Evidence  treatise and Best Practice Guides which provides extensive discussion of the applicable legal and technology area and other cases involving these issues.