White v. Graceland Coll. Ctr. for Prof’l Dev. & Lifelong Learning, Inc., 2009 WL 722056 (D. Kan. Mar. 18, 2009)
In this wrongful termination case, plaintiff discovered discrepancies between certain relevant emails’ sent dates and the creation dates of their attachments. These discrepancies, plaintiff contended, were relevant to the issue of when the decision to terminate her employment was made.
Without additional information, however, plaintiff’s forensic expert could not come to a conclusion regarding the meaning of the discrepancies. Accordingly, plaintiff sought the re-production of the emails, in native format, and their attachments from the Outlook accounts of both the sender and the recipient of each email. Plaintiff also sought the production of the relevant PST and OST files and access to the hard drives used to create any of the emails’ attachments. Plaintiff’s motion was granted in part and denied in part.
Upon examination of three emails sent between plaintiff’s supervisors and those emails’ associated attachments, plaintiff’s expert discovered “discrepancies between the creation and sent dates of the emails and attachments” but could not make any definitive conclusions without additional investigation.
For example, despite defendants’ claim that the decision to terminate plaintiff was made on July 2, 2004, an attachment to one of the relevant emails showed a creation date of June 9th.
Plaintiff’s expert indicated that in order to determine when an email was created and transmitted, he needed to review the email from both the sender’s “sent items” and the recipient’s “inbox” and that he also needed access to the computer that created the emails and their attachments. Accordingly, plaintiff filed her motion to compel.
The above mentioned case highlights the case for retaining a complete set of ESI for a specific retention period. The cost associated with tracking down and restoring specific email messages and attachments from backup tapes or custodian PSTs can be extremely expensive and time consuming.
In this case, if the responding party had put in place a proactive ESI archive, the cost and time involved to produce the specific emails and attachments in a native format with all associated metadata would have been minutes.
Even more so, if the defendant had a searchable proactive archive to query the first time, the requested ESI could have been produced quickly without all of the additional costs associated with the second round of searches.