Computer glitches are commonplace in the corporate world, but courts apparently have little sympathy for the victims of such incidents when it comes to e-discovery. In PSEG Power New York, Inc. v. Alberici Constructors, Inc., 2007 WL 2687670 (N.D.N.Y. 2007), the United States District Court for the Northern District of New York held that despite the burdensome cost, one respondent that was hit with electronic software malfunctions nonetheless had to re-produce electronic emails with their corresponding attachments. Businesses should be conscious of the fact that technology flaws are unlikely to be a valid excuse for not producing e-discovery information.
The issue arose in a multi-million dollar contractual dispute between PSEG Power New York and Alberici Constructors. PSEG sued Alberici alleging improperly performed work and failure to complete other obligations on the contract. Alberici filed a mechanic’s lien against PSEG and then filed an answer with 2 counter-suits and 14 affirmative defenses. Both companies sought electronic e-mail communications and documentary evidence in their discovery requests. PSEG claimed that while compiling the e-mails, a technical glitch occurred whereby numerous emails were “divorced” from their attachments. PSEG asserted that the “vendor’s software was not compatible with the HTML format in which PSEG had provided its documents and that this incompatibility had resulted in the parent child link between the emails and attachments being broken.” The raw data was not lost, and PSEG did produce a hardcopy of more than 211,000 pages of documents.
Over the next several months, the parties attempted to find a way to resolve the detachment problem. PSEG created a spreadsheet it claimed Alberici could use to match up the hardcopies with e-mails, but this apparently did not work. The parties also attempted to use “metadata” associated with the e-mails and attachments as a means of “remarrying” the attachments with the e-mails, but this was unsuccessful.
PSEG contended that the estimated cost of retrieving the emails and their attachments, based on its vendor proposal, would be $206,000. After conferring with its own consultant, Alberici alleged that the cost of retrieval would be less than $40,000. Neither party was willing to bear the costs, whatever the estimate. The court then addressed three issues: “(1) is Alberici entitled to receive the emails with the related attachments together as opposed to their current state of separation, lacking coordinated identification with each other; (2) although PSEG has provided these emails and attachments in hard copy albeit not ‘married,’ is PSEG obligated to provide these documents in their original format; and (3) if re-production is required, which party bears the cost of production?”
The court acknowledge that this case was brought in 2005, before the e-discovery amendments to the rules became effective. and “[p]rior to December 1, 2006, parties were required to produce records as they are kept in the usual course of business or organize and label them to correspond with the categories in the request, as evidence that nothing has changed materially as to electronic discovery.” The court concluded that the 3000 emails and attachments had not been produced in accordance with that requirement. According to the court, there is no excuse for producing emails and attachments “in a jumbled, disorganized fashion.” After weighing several factors, including its determination that Alberici established good cause for requiring reproduction of the e-mails in their original form, the court found that the potential for discovery in this case outweighed the cost and burden of reproduction. The court also placed the burden of cost for the reproduction on PSEG, “whatever that [cost] may be,” but gave PSEG several options for meeting the obligation. Nonetheless, PSEG must re-produce the emails with their corresponding attachments, and bear the burden of cost.
Full opinion at http://www.nylawyer.com/adgifs/decisions/092007treece.pdf