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Robert Margolis, et al v. the Dial Corporation

July 3, 2012

ROBERT MARGOLIS, ET AL.,
PLAINTIFFS,
v.
THE DIAL CORPORATION, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge

ORDER DENYING PLAINTIFFS' REQUEST FOR AN ORDER PRESERVING CERTAIN ELECTRONICALLY STORED INFORMATION

Pending before the Court is Plaintiffs' request for an Order to preserve certain Electronically Stored Information ("ESI") belonging to Defendants, specifically: (1) voicemail and instant messages; and (2) backup tapes. (Doc. No. 42 at 2-3.) For the reasons stated below, Plaintiffs' request is DENIED.

I. BACKGROUND

On April 19, 2012, the Court held a telephonic Discovery Conference during which a briefing schedule was set for the parties to discuss ESI preservation. (Doc. Nos. 34, 35.) On April 20, 2012, the Court ordered all ESI to be preserved, with Defendants maintaining the status quo of all evidence, including backup tapes, until the Court reviewed the parties' briefs on the ESI issues. (Doc. No. 35.)

On May 2, 2012, Defendants' filed an initial brief pursuant to the Court's April 20, 2012, Order. (Doc. No. 36.) On May 18, 2012, Plaintiffs' filed a Response brief, and Defendants' filed a Reply brief on May 25, 2012. (Doc. Nos. 42, 44.)

II. VOICEMAIL AND INSTANT MESSAGES

Defendants sent a letter to Plaintiffs on April 12, 2012, in an attempt to reach an agreement about ESI preservation. (Doc. No. 36 at 3; Exh. A.) The letter stated, "Defendants do not believe that this case requires preservation of voicemails or instant messages given the nature of the claims at issue." Id. Plaintiffs did not respond to the letter. Id. at 3.

Plaintiffs argue that the preservation of voicemail and instant messages is required under Zublake v. US Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003), because the group of employees involved is small and identifiable, there will be local archive files and possibly a dedicated voicemail and instant message server, and the data may not otherwise be available if the archive data is not preserved. (Doc. No. 42 at 4.) Plaintiffs assert that a preservation order will impose a minimal burden on Defendants because it will require a one-time copying of voicemail and instant message servers, in additional to local archive files. Id.

Defendants argue that they have already sent a litigation hold notice to employees who may have potentially relevant documents, and have instructed them to preserve voicemail and instant messages. (Doc. No. 36 at 3.) Defendants state that they have taken, and absent agreement between parties, will continue to take, reasonable steps to preserve any relevant voicemail or instant messages that may exist. Id. at 4-5. For these reasons, Defendants do not feel that a preservation order is necessary. Id. at 5.

It is clear from Plaintiffs' ESI brief that they believe Defendants' voicemail and instant messages should be preserved. (See Doc. No. 42.) It is the Court's understanding that there has been no agreement to the contrary. As Defendants state in their briefing, in the absence of an agreement, they will continue to take reasonable steps to preserve any relevant voicemail or instant messages. (Doc. No. 36 at 4-5.) Therefore, the Court finds no need to issue a preservation order dealing with voicemail or instant messages, and DENIES Plaintiff's request as moot.

III. BACKUP TAPES

Plaintiffs concede that true forms of disaster recovery tapes are not reasonably accessible without undue burden or cost. (Doc. No. 42 at 3; citing Fed. R. Civ. P. 26(b)(2)(B).) However, Plaintiffs still request that the Court order Defendants to determine the completeness of their ESI about the website www.getmagnetic.com, in order to resolve the issue of whether preservation of disaster recovery tapes is necessary. (Doc. No. 42 at 6.) They believe that Defendants should take appropriate steps to preserve website data, even though the website is operated by a third-party advertising agency. Plaintiffs further suggest that the backup tapes should be preserved only to the extent that data contained on them is not otherwise available. Id.

Defendants' assert that their backup tapes fall squarely within the general category discussed in Zublake, and are not subject to the exception. (Doc. No. 36, Signorello Decl. ΒΆ 10-15.) Defendants state that they have already sent letters to third parties that may have relevant documents. Id. at 2. They argue that an order requiring preservation of backup tapes would be unduly burdensome and duplicative, and that ESI preservation ...


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