Court Rejects Search Of Backup Tapes As Not “Proportional”

The court told a plaintiff physician, who was pleading defamation and discrimination after a health care provider revoked his privileges to practice, that if he wanted to check out the defendant’s email backup tapes he’d have to pay the access and search costs himself. Those costs were estimated by the defendant, Franciscan Health System, to be $147,000. Franciscan Health had been required to produce so-called “live” emails, meaning those that were still contained in a searchable system. But when asked to produce the archived emails, it argued that because the plaintiff had not identified what kind of materials he believed they contained, the request amounted to “an extremely expensive fishing expedition,” and the court apparently agreed. Among the takeaways from this Western District of Washington ruling, writes Sarena Regazzoni on the Zapproved website, is that parties asking for costly discovery should tell the court as specifically as possible what they expect to find, and if possible provide examples.