Treasure Map to Avoiding Discovery Obligations

Treasure Map to Avoiding Discovery Obligations

In the midst of deciding Defendants’ Motion to Dismiss and Plaintiffs’ Motion to Amend concerning 42 U.S.C. 1983, 1985(3), the New Jersey Civil Rights Act, and civil conspiracy claims against two state officials, the court in Major Tours addressed an appeal of a magistrate judge’s order regarding an e-mail discovery dispute.  As the court affirmed the magistrate’s holding that production was unduly burdensome and good cause was not shown, did it offer the state and future defendants a treasure map to avoiding discovery obligations? In Major Tours, the plunder was at least a million dollars worth of discovery and avoidance of possible sanctions for spoliation, not to mention the possible value of the e-mails that were not produced.

State defendants argued that pursuant to Rule 26(b)(2)(B), they did not need to restore emails from backup tapes that were designed to reproduce the entire network environment in the event of a crash, and not for retrieval of particular documents such as the e-mails Plaintiffs demanded, given the excessive cost that would result. Fed. R. Civ. P. 26(b)(2)(B). Defendants asserted that the high cost met the undue burden exception to production.  Plaintiffs, on the other hand, argued that Defendants’ failure to maintain emails in accessible format should not serve as a basis for non-production and that they had shown good cause for production. For, the magistrate judge explicitly found that (1) September 11, 2003 was the date of Defendants’ duty to preserve relevant evidence as triggered by a threat of litigation, (2) an informal and inadequate hold letter was not issued until November 5, 2005, and (3) a formal hold letter was not issued until March 22, 2007.

Still, relying in large part on Zubulake v. USB Warburg LLC, 217 F.R.D. 309, 319-20 (S.D.N.Y. 2003), the magistrate judge found the backup tapes were not reasonably accessible and also held that Plaintiffs had not demonstrated good cause for production otherwise.  On appeal, Plaintiffs argued that the magistrate judge failed to give appropriate weight to Defendants’ failure to issue a timely litigation hold and hence, their responsibility for the inaccessibility, in balancing the seven factors set out in the notes to Rule 26(b)(2)(B).

In reviewing the issue as a question of law de novo, the District Court held that nothing in the plain language of Rule 26(b)(2)(B) calls for a bright line rule that a protective order can never be granted to a party when evidence is inaccessible because of that party’s failure to properly institute a litigation hold.  The court held that “undue” did not mean “not a result of the party’s own negligence,” but simply that the burden or cost outweighs the benefit, an issue not previously addressed in Zubulake or its progeny. In fact, the court explicitly distinguished the Zubulake cases as addressing the issue of when spoliation sanctions are warranted, an act confined to the sound discretion of the trial judge.

Yet, the court hung its hat upon this same discretion.  It stated that the Rules call for discretion in the balancing of the costs and benefits of discovery and that a party’s failure to issue a litigation hold should be weighed in the balance, reiterating that no bright line rule exists.

Having found no such rule, the District Court then examined whether the magistrate judge abused his discretion in balancing the costs and benefits, that is, the seven factors set forth in the notes to Rule 26(b)(2)(B), perhaps including the fact that “negligent” spoliation had occurred; that Defendants had not issued a proper hold letter until nearly three and half years after their duty to do so was triggered.  In reiterating the magistrate’s finding that the emails would only produce a marginal and cumulative benefit which would pale in comparison to the million dollar cost of production, the court answered in the negative.

In doing so, did the court highlight the road to non-production for future defendants? Did it do so by holding as it did given the facts of the case or by rejecting a bright line rule which calls more concretely for consideration of a Defendants’ role in causing material to become inaccessible and production to become unduly burdensome?  The court again answered in the negative and set forth three reasons why its opinion would not serve to allow others to avoid discovery obligations.

The court stated that it took no position as to whether a bright line rule exists with respect to intentional spoliation, and that in such a case the outcome may be different.  Yet, while Plaintiffs did not challenge the magistrate judge’s finding that there was no intentional spoliation in the case at hand, it seems all too easy to “negligently” forget to send out a litigation hold letter for a number of years given the facts herein.  Does this case blur the line between negligent and intentional spoliation? Or perhaps gross negligence and negligence?

The court also cited the penalties available for spoliation wholly apart from whether production is ordered as a means of deterrence of parties from avoiding discovery obligations.  Yet, the court did not issue any penalties in the case at hand, and, as aforementioned, earlier on in the opinion, it distinguished the Zubulake cases in which the issue was whether spoliation sanctions were warranted. Will this case really serve to deter a defendant’s efforts toward non-production in the future?

Finally, the court posited that simply because it did not adopt a bright line rule, it did affirm the existence of an opposite rule.  It again cited the discretion of the judge in balancing the seven factors of Rule 26(b)(2)(B), in weighing undue burden and good cause, in considering a party’s negligent spoliation of evidence.  The court’s rhetoric allows for an understanding that an opposite rule was not adopted, but the facts and outcome of this case may call for another.


Edvie received her B.A. and M.A. in English from Seton Hall University.  She will receive her J.D. from Seton Hall University School of Law in May 2012.  Throughout her time at Seton Hall Law, Edvie served as chair of the Women’s Law Forum, vice president of the St. Thomas More Society, and editor of the Urban Education Law & Policy Initiative Blog. Edvie currently clerks for a prominent employment firm in Woodland Park, New Jersey.  After graduation, she will clerk for an assignment judge in the Superior Court of New Jersey. 

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