Klein v. Meta Platforms, Inc.

Background

The parties reported that they had agreed on several aspects of an electronically stored information (ESI) protocol governing the preservation, collection, review, and production of ESI. Two disputes remained.

First, the parties disagreed about whether backup systems and tapes used solely for disaster recovery were not reasonably accessible and therefore did not need to be preserved under Federal Rule of Civil Procedure 26(b)(2)(B). Second, they disagreed about Facebook’s proposed addition of Section 4(e), which would have stated that a party could determine that a particular source of ESI did not need to be preserved if preservation was disproportionate to the needs of the case, including because of burden or cost.

Backup Systems and Tapes

The court agreed with Facebook that, as a general rule, disaster-recovery backup systems and tapes are not reasonably accessible for purposes of Rule 26(b)(2)(B) and need not be preserved. The court explained that this general rule assumes the backups contain information duplicated elsewhere, are not actively used for retrieval, may store a particular custodian’s information across multiple systems or tapes, and are regularly recycled. The court also recognized that preserving backup tapes may sometimes be warranted, such as when emails from an important person in the litigation are unavailable elsewhere but stored on particular tapes.

The court found that the parties’ submission did not provide enough information to resolve the dispute. It was unclear whether Facebook’s backups had the characteristics that generally make such materials not reasonably accessible. It was also unclear whether the backups contained information from important custodians or other critical sources that was unavailable from accessible sources.

The court therefore ordered Facebook to provide the plaintiffs information about the characteristics of its backup systems and tapes. If that information did not persuade the plaintiffs that the materials were not reasonably accessible, Facebook could submit a declaration to the court describing the facts supporting its position. The plaintiffs could identify up to six key custodians or other information sources, such as a database, for Facebook to investigate. Facebook had to determine whether the relevant ESI was reasonably accessible from sources other than the backups and confirm that it had preserved the ESI in other reasonably accessible sources. If Facebook found a gap in reasonably accessible ESI, it had to confer with the plaintiffs about whether and how the backups might address the gap for preservation purposes.

The parties were ordered to advise the court of their further efforts by November 5, 2021, unless they agreed to a different date.

Proposed Section 4(e)

The court declined to require the ESI protocol to include Facebook’s proposed statement that a party could independently decide not to preserve a particular ESI source when preservation was disproportionate to the needs of the case. The court stated that relevance and proportionality should guide discovery, but noted that the parties had attempted to address those concerns through specific case guidelines, including the ESI protocol.

The court directed that if Facebook or another party believed that applying a particular guideline would be disproportionate, the parties should confer. If they could not resolve the issue, they could bring it to the court. The order did not decide the merits of the parties’ underlying claims.