ORDER ON RELATORS’ RESPONSE TO COURT’S ORDER FOR ADDITIONAL BRIEFING ABOUT ELECTRONIC FORMAT DISPUTE, DEFENDANTS’ SUPPLEMENTAL BRIEF RE: PRODUCTION OF DOCUMENTS FROM BACKUP TAPES AND THE FORMAT USED IN THE PRODUCTION OF EMAIL, AND RE-LATORS’ RESPONSE TO COURT’S ORDER FOR ADDITIONAL BRIEFING ABOUT BACKUP TAPES DISPUTE
I. INTRODUCTION
Before the Court are the Relators’ Response to Court’s Order for Additional Brief
For the Parties’ arguments to be fully understood, this Court first clarifies some essential linguistic ambiguity.
Plaintiffs’ demands for three discrete subsets of ESI—databases archived on backup tapes (“Backup Databases”), active emails (“Active Emails”),
Although the case law regarding ESI is continuously evolving, certain definite tenets have emerged. Critically, they have been written into the Rules both before and after their 2006 emendаtion; critically, despite contrary applications, specific standards have gained the judiciary’s wide support. In accordance with these standards and the decided weight of precedent, as explained more fully below, this Court DENIES without prejudice Plaintiffs’ demand for the Backup Data’s production in any form, Native production of Active Data to the extent that ESI has already been provided by Defendants, and the provision of metadata already deleted and rendered inaccessible during Defendants’ regular operations.
II. BACKGROUND
A. Relevant Facts
Bridgepoint Education, Inc. (“Bridge-point”), a publicly traded company incorporated under Delaware law in May 1999 with its headquarters in San Diego, California, operates two brands: Ashford University (“Ashford”), purchased by Bridgepoint in March 2005, and the University of the Rockies, acquired by Bridgepoint in September 2007.
The Plaintiffs’ relationship with Bridge-point’s Ashford subsidiary dates to 2008. Prom March 2008 through at least May 10, 2013, Mr. James Carter (“Carter”) worked as an “enrollment advisor” on Ashford’s “San Diego campus”
B. Relevant Statutes
Passed in 1863, the False Claims Act (“FCA”), also known as the “Abraham Lincoln Act,” “Qui Tam Act,”
In its present form, the FCA allows “[a] person may bring a civil action for a violation of section 3729 for the person and for the United States Government,” 31 U.S.C. § 3730(b)(1), and deems such persons “a relator,” Vt. Agency of Natural Res. v. United States ex rel. Stevens,
The fraud at issue here arises from Defendants’ purported violation of a particular encoded prohibition. Under the auspices of Title IV, the federal court dispenses funds to institutions to assist students with the costs of higher education. To participate in this generous program, such entities must enter into a Program Participation Agreement with the Department of Education, binding these schools to a “panoply of statutory, regulatory, and contractual requirements.” United States ex rel. Hendow v. Univ. of Phoenix,
In ascertaining whether a violation of the Incentive Compensation Ban has occurred, the critical question is not whether an institution has crafted a written policy proclaiming fealty to its technical requirements. Rather, it is “the [the school’s] implementation of its policy ... that bears scrutiny,” and this ban will be violated whenever “despite [a] Compensation Program’s purported or documented reliance on something other than recruitment numbers, [] salary increases are in practice determined in the sole basis of recruitment numbers.” Lee,
C. Summary of Disputes ## 1, 2, 3, and 4
As discovery began in earnest, four interrelated disputes implicating the production of Defendants’ myriad ESI arose. Stated briefly, the Parties disagreed over the custodians to be searched (“Dispute # 1”), the time periods for which Defendants were obligated to provide their business records (“Dispute # 2”), the number of databases to be queried and their content produced by Defendants for Plaintiffs’ examination (“Dispute # 3”), and the production format of any and all ESI (“Dispute # 4”). (Doc. No. 63 at 2.) A fifth one—the production of ESI with its metadata intact—arose as well, one referenced in the Plaintiffs’ Response.
The genesis of Dispute # 1 was Plaintiffs’ request for all documents “in the possession, custody, or control of Bridgepoint, including its officers, management, employees, agents, representatives, attorneys, insurers, any persons acting on its behalf, and affiliates and departments.”
Dispute # 2 involved the relevant time period for production. Plaintiffs demanded “production of documents from 2005 to present”; Defendants refused. (Id. at 4.) Defendants argued that the factual events allegedly underlying Plaintiff claims, as embodied in the unsealed complaint, had transpired between 2005 and 2011. (Id. at 5.) Pursuant to their own complaint, therefore, Defendants contended that Plaintiffs were not entitled to any ESI from before 2005 or after 2011. In response, Plaintiffs emphasized, “[A]ny current documents would be relevant to prior company actions,” and added, “The Complaint alleges claims extending ‘through the present date’.” (Id. at 5.) Defendants countered: “[T]he ‘present date’ is the date of filing, July 2, 2010, and therefore could not have related to any post-filing allegations.” (Id. at 6.)
Dispute # 4 arose from Plaintiffs’ instruction to Defendants “to produce each original document with all non-identical copies and drafts of that document.” (Id. at 11.) As to ESI, Defendants promised to produce the requested material in “single-branded TIFF images.” (Id.) Plaintiffs then objectеd, demanding that Native be used for even those emails- stored on Defendants’ backup tapes. (Id.) As Plaintiffs again echoed, by doing so, Defendants have refused to satisfy Rule 34(b)(2)(E)(ii), as TIFF is not the form in which the backup tapes’ ESI is “ordinarily maintained or in a reasonably useable form.”
To deal with this quartet, at an informal teleconference held in the late afternoon of December 2, 2014, this Court resolved Dispute # 1, requiring production of emails from managerial employees and a sampling of recruiters.
D. First Two Subjects of this Order: Disputes ## 3 and 4
At this conference’s end, therefore, two controversies—Disputes ##3 and 4—were left undetermined, scheduled for briefing by the Parties as December and January unfolded: the specific format in which Defendants’ backup tape-stored ESI would be produced. Defendants have insisted on the use of TIFF; Plaintiffs have demanded that Native be utilized for “all electronically stored information.” (Doe. No. 67, at 2-3; Doc. No. 68, at 2-3.) The Parties’ Papers articulate each
Having delineated the relevant standard for ESI discovery, Defendants initially explain their process for storing ESI. “Active,” currently utilized emails and documents are stored on readily available servers, but all other electronic data, defined in the negative, is automatically stored on backup tapes. (Doe. No. 68 at 4-5.) Intended to be used in case of disaster recovery, these backup tapes “are encrypted,” and one alone “can exceed one terabyte.” (Id.). Thereupon, Defendants propound six reasons for opposing Plaintiffs’ demand for Native production. First, as much precedent attests, “disaster recovery backup tapes—such as those at issue here—are generally considered inaccessible and not subject to required review or production.” (Id. at 5 (citing Rowe Entm’t, Inc. v. The William Morris Agency, Inc.,
Both in their first and second filing, Plaintiffs present seven arguments in their favor. First, they stress the formats’ relative utility and cost of production, deriding TIFF as “extremely expensive to produce, containing] no metadata, and ... not searchable by electronic means without extensive and expensive additional processing” and the “creation of additional layers of ‘searchable’ data (with inherent risks of errors and omissions).”(Doe. No. 67 at 2.) Its request, when considered overall, is “cheaper.” (Id.) Sec
Plaintiffs’ most disconcerting reason, as expounded in several motions, are the sundry malefactions that it accuses Defendant of committing. These include “refusing to answer basic questions regarding how its system for storing electronic documents works” and delivering only “vague, confusing and contradictory” explanations. (Id. at 3.) As a result, Plaintiffs have been deprived of their ability both “to evaluate any alleged cost of restoring the backup tapes or to make any reasonable alternative proposal,” concocting “absurd” stories “that [it] would take years and millions of dollars to restore” the relevant data, and possibly using figures that blend the costs of attorney review and redaction. (Id. at 4-5.) In this vein, Plaintiffs describe the ESI’s relative inaccessibility to be a result of Defendants’ own deliberate obstruction: “Bridgepoint made these documents both inaccessible and far more costly than necessary to access, when it should reasonably have known it would need to provide such documents in the course of litigation, including this lawsuit.” (Id.) Having fail to append any expert declaration, Plaintiffs Second Response concludes: “Disputes regarding the scope and cost of electronic discovery, including the production of electronic data stored on backup tapes, should never be resolved based on assumptions and guesswork.” (Id. at 5 (relying on Zubulake v. UBS Warburg LLC,
E. Final Subject of this Order: Dispute #5
In the course of this back-and-forth, a fifth dispute suddenly emerged. Notably, Dispute #5 was never clearly summarized in the Parties’ original statements to this Court; notably, Dispute # 5 involves a form of ESI that both Parties subsumed into their conflict over Native and TIFF. Thus, in pushing for Native production, Plaintiffs asseverated that one of this format’s benefits was its preservation of metadata. (Doc. No. 67 at 2-3). Indeed, Plaintiffs demanded all ESI—both the Backup Data and the Active Emails—be produced in Native due to metadata’s general, but not case-specific, importance. (Id. at 2 (“Sometimes, the metadata may be essential to a full understanding of the document.” (Internal quotation marks omitted))). Defendants did not expressly counter Plaintiffs’ demands for metadata; instead, by insisting on TIFF’s benefits, they implicitly argued for its non-production as to active data. (Doe. No. 68 at 7-8.) Because metadata is actually a distinct form of ESI, this Court considers Plaintiffs’ capacious request for all “documents” and Defendants’ implicit opposition to metadata’s manufacture to have created а fifth dispute.
III. DISCUSSION
A. Standard
1. ESI’s Discoverability and the Expense of Its Production
Rule 34(a) permits any party to serve on any other party requests to pro
Per the Rules’ plain text, for accessible or inaccessible ESI to be discoverable, the relevance test set in Rule 26(b) must be satisfied. Both broadly written and expansively construed, Rule 26(b)(1) allows the discovery of “[r]elevant information,” even if inadmissible at trial, “if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Crv.P. 26(b)(1). “Discovery is not limited to the issues raised by the pleadings” or “to the merits of the ease.” Henderson v. Holiday CVS, L.L.C.,
2. Constraints on Discovery
Even if evidence is discoverable and relevant under Rules 34 and 26, the Rules contain some express constraints, boundaries both “ultimate and necessary,” Hickman v. Taylor,
It was the modern proliferation and prevalence of ESI over hard copy
As such, from Rowe and Zubulake, as extrapolated in an ever growing count of cases and the Sedona Conference thereafter,
In contrast, when “backup tapes and erased, fragmented, or damaged data” is requested, such ESI is generally defined as “inaccessible.” Quinby v. WestLB AG,
Even as it has gained in prominence, this preference for cost-shifting has been extended beyond merely inaccessible ESI. As Zubulake’s own author has observed, such balancing is proper even as to accessible data so long as the factors set forth in Rule 26(b)(2)(C) evidence cost-shifting’s suitability. Shira A. Scheindlin & Daniel J. Capa, Electronic Discovery and Digital Evidence 314 (2009) (“Cost-shifting is available even for accessible data based on the proportionality factors set forth in Rule 26(b)(2)(C).”); accord, e.g., Zeller v. S. Cent. Emergency Med. Servs., No. 1:13-CV-2584,
B. Application: Backup Databases
As precedent compels, this Court will apply the prevailing framework embedded in Rules 34(b)(2)(E)(ii) and 26(b)(2)(B) and construed in the Zubulake and Rowe jurisprudence to determine whether the ESI stored on Defendants’ backup tapes must be produced in Native at Defendants’ expense. Accordingly, this Court will first consider the Backup Data’s discoverability and then their apparent inaccessibility. It will thereupon decide the extent, if any, the costs must be shifted for the kind of production (Native) Plaintiffs have now demanded.
1. Discoverability
As a threshold matter, this Court deems the Backup Databases to be discoverable ESI under Rule 34 and regards Defendants as having been responsible for its preservation. Fed.R.Civ.P. 34(a); Zubulake,
2. Inaccessibility of ESI Stored on Backup Tapes
Consideration of ESI’s aecessability involves two discrete determination: first, the extent to which the data at issue is actually inaccessible, and second, the apparent reasons for this status. In general, inaccessible ESI “is not readily useable and must be restored to an accessible state before the data is usable.”
Applying the foregoing precepts, this Court finds that Defendant has met its burden of showing this particular ESI’s inaccessibility. Again and again, “district courts have recognized the unique burden of producing documents stored on backup tapes and, by invoking Rule 26(c) to fashion orders to protect parties from undue burden or expense, have conditioned production on payment by the requesting party.” Hagemeyer N. Am., Inc.,
To this fact, Plaintiffs only unleash a torrent of eonelusory—and inapposite—allega-tions. “Bridgepoint scrambled to make its emails legally inaccessible,” they write. (Doc. No. 69 at 4.) Even in making this accusation, Plaintiff acknowledge that this ESI has been placed onto “backup tapes,” (id.), thereby accepting Defendants’ own description of the relevant ESI as “inaccessible.” Dangerously, Plaintiffs have chosen to describe this storage system as adopted “under the pretext or excuse of a business purpose,” (id.), even though the use of backup tapes for non-active ESI has become standard business practiсe. Isom, Electronic Discovery Primer for Judges, at 41-42 (discussing the various reasons business use backup tapes). Plaintiffs may feel free to decry Defendants’ contentions that it will take years and millions to restore this ESI to Native form, but these declamations do not disprove Defendants’ assertion that the Backup Data has become inaccessible as part of their typical data retention schematic.
3. A Showing of Particular Need and an Absence of Special Relevance
Having found the Backup Data to be inaccessible, this Court turns to the Zubulake factors to ascertain which party must bear the expense of its production. The famed seven read: (1) “[t]he extent to which the request is specifically tailored to discover relevant information”; (2) “[t]he availability of such information from other sources”; (3) “[t]he total costs of production, compared to the amount in controversy”; (4) “[t]he total costs of production, compared to the resources available to each party”; (5) “[t]he relative ability of each party to control costs and its incentive to do so”; (6) “[t]he importance of the issues at stake in the litigation”; and (7) “[t]he relative benefits to the parties of obtaining the information.” Zubulake,
In looking at these factors, the balance here favors cost-shifting as to any ESI from additional backup tapes based on both the Backup Data’s minimal apparent relevance and Defendants’ adherence to a common ESI policies. First, during this litigation and pursuant to this Court’s prior dictates, Defendants have restored the contents of one backup tape to Native form and thereby afforded Plaintiffs access to every email between enrollment advisors and their managerial superiors. The only ESI presently excluded from Plaintiffs’ embrace at Defendants’ expense are those emails exchanged by recruiters amongst themselves and with third parties. It is thus overwhelmingly certain that Plaintiffs now have or will soon obtain an unfettered ability to examine almost every potentially relevant quantum of ESI; at best, the as-of-yet unproduced emails will divulge varied recruiters’ subjective, even if accurate, impressions regarding Defendants’ compensation structure, but thоse emails will not evidence a fraud if unsupported by the statements of directors and managers. To the latter persons’ missives, as this order has already stressed, Plaintiffs have already been granted access, leaving the relevance of the undiscovered data at best dubious. Second, while TIFF may not be as easy to scan or search as Native in Plaintiffs’ eyes, TIFF is still a widely used ESI format. Kyle C. Bisceg-lie, Lexisnexis Practice Guide: New York E-Discovery and Evidence § 3:10 (2012). In light of this apparent verity, even though Defendants is obligated to produce the ESI requested in the format in which it is regularly stored, Plaintiffs now also demand that Defendants undertake the burden of restoring the Backup Data to its unnatural format: Native. They must do this, Plaintiff insist, despite two likelihoods never actually discounted in Plaintiffs’ filings: first, Defendants’ storage practices accord with much of corporate America’s approach to storage of non-active data for business purposes, and second, pursuant to this Court’s prior orders and in accordance with Defendants’ previous offers, almost every bit of probably relevant ESI will still be provided to Plaintiffs in a commonly utilized electronic form. In spite of Plaintiffs’ belief to the contrary, the Rules do not compel Defendants to produce inaccessible ESI in the form most helpful for Plaintiffs’ ease at Defendants’ expense. No, the Rules compel no more than production of ESI in its usual form, with Plaintiffs themselves obligated to pay for the production of inaccessible ESI in an аccessible form.
Finally, having examined the Parties’ Papers, the Court notes the inherent vagueness in the Plaintiffs’ requests for “documents” and “databases.” (Doc. No. 63 at 7, 11.) As numerous courts have ruled, if a party fails to identify the form or forms in which it wishes ESI to be produced and any particular fields or types of metadata sought, the non-requesting party may rightly provide the ESI sought in the form in whiсh it is regularly maintained. With Plaintiffs’ request ambiguous as to form and format, Defendants were certainly reasonable in refusing to provide reasonably in accessible ESI.
To meet their burden, Plaintiffs propounded a slew of reasons, but none convince this Court. First, to base their demand for Native production on Defendants’ purported misdeeds, allegations that Plaintiffs have yet to prove in a court of law, in defiance of the Rules’ plain text would require this Court to permit extraordinary discovery based merely on unproven accusations. Because Defendants may be guilty of a host of federal violations, Plaintiffs essentially contend, this Court must impose upon them a burden greater than thrust on parties generally. Neutrally worded, the Rules are not so written as to permit a court to adjudicate guilt by the surreptitious means of onerous discovery obligations’ imposition. Repeatedly, Plaintiffs rest much of their insistence on forcing Defendants to bear the cost of resorting the backup ESI to Native on wild accusations, unsupported by credible evidence, that Defendants used a commonly employed method of storage with the intent of preventing this data’s discovery in subsequent litigation. (Doc. No. 69 at 4.) To show intentional spoili-ation, they do not explain how Defendants’ storage process is unusual or even how this ESI is uniquely inaccessible, the Defendants having adopted a procedure few businesses have themselves endorsed. Nor do they show that Defendants, even if aware of their potential liability, deliberatеly created a policy of storing ESI that would make particularly relevant emails suddenly inaccessible to any and all potential litigants. Indeed, even if ligation was threatened, Plaintiffs would have to provide some indicia of any such purpose for cost-shifting to be foreclosed and spoliation to be found. To wit, whether their accusations are true or not, they must be supported by some credible evidence, not implications and innuendo, for a defendant remains free to operate their business in its ordinary course in the absence of the reasonable probability of a certain lawsuit and so long as it does not render data inaccessible purely with the intent of stymying such legal action. Plaintiffs needed something more to shift the balance; littered with unproven and unknowable assertions, their two motions do not do so. Just as maddeningly, Plaintiffs labels Defendants’ projections “absurd,” (Doc. No. 69 at 4), yet it was they who failed to provide an expert’s declaration to substantiate this assertion.
C. Application: Native versus TIFF
The Parties’ dispute over the proper format for active emails is governed by a similar cost-shifting analysis. While Native and TIFF both exhibit notable weaknesses and strengths, “[i]n current practice, many parties, local rules and courts have endorsed the use of image production formats, principally ... TIFF and Adobe Portable Document Format (“PDF”) formats.” The Sedona Principles at 190; see also Osborne v. C.H. Robinson Co., No. 08 C 50165,
The language utilized in Plaintiffs’ filings makes clear it did not make a specific request for Native production. In describing its position regarding Dispute #4, titled “format of emails to be produced,” Plaintiffs described its initial request in the following terms: “Plaintiff instructed Bridgepoint to ‘produce each original document with all nonidentical copies and drafts of that documents’.” (Doc. No. 63 at 11.) The term “original” is certainly not sufficiently precise, as much case law demands, for Defendants to have volunteered Native production at their own initiative. Cf. Johns v. Bayer Corp., No. 09-CV 1935 DMS JMA,
Because Plaintiffs did not demand Native production with express precision, this Court must then consider who must bear the cost of Native production, if ordered. See, e.g., Cen-veo Corp. v. S. Graphic Sys., No. 08-5521 (JRT/AJB),
D. Application: Metadata
Metadata, as Plaintiff correctly insist, is discoverable. Doe. No. 67 at 2; see, e.g., United States v. Rubin/Chambers, Dunhill Ins. Servs.,
For two reasons, this Court will not order Defendant to produce any active ESI’s full metadata. First, in defiance of present custom, Plaintiffs never specifically submitted detailed and express requests for any ESI’s Metadata. Such specificity, as the very case they cite makes clear, is often an essential prerequisite for a court to order metadata’s production at the requested party’s expense. Aguilar,
IV. CONCLUSION
Having waded through this case law, this Court is driven to one conclusion: had the Parties adhered to the spirit of Rule 26(f)(3)(C), nearly every dispute dissected in this lengthy order may have been avoided. Unfortunately, they did not strive to avoid later difficulties or ease their resolution via compromise and accommodation; unfortunately, access to ESI that may have been more broadly available based on compromise and mutual understanding of the costs and cоmplexities involved will now be delimitated by court order rather than these adversaries’ agreement. Accordingly, based on the preceding analysis, this Court orders as follows:
Plaintiffs’ requests for the production of the Backup Databases, the Active Emails in Native, and the Metadata are DENIED without prejudice.
As to all ESI, whether accessible or inaccessible, post-dating this suit’s unsealing in January 1, 2013, Plaintiffs will bear the cost of searching and recovery. Defendants, however, will bear the cost of production.
IT IS SO ORDERED.
Notes
. Two other orders shall be released within days of this order’s docketing.
. Unless otherwise noted, "Rule” refers to the Federal Rules of Civil Procedure throughout this order.
. These definitions appear in a number of authoritative sources. See, e.g., The Sedona Conference, The Sedona Conference Glossary: E-Discovery & Digital Information Management (4th ed. Apr. 2014); Barbara J. Rothstein, Ronald J. Hedges & Elizabeth C. Wiggins, Managing Discovery in Electronic Information: A Pocket Guide for Judges 23-24 (2007); Fed. Jud. Ctr., Manual for Complex Litigation § 11.446 (4th ed.2004).
. Seemingly, since stray emails may reside within the relevant databases, the two categories may effectively overlap. As such, any non-active email can only now be found on Defendants’ backup tapes.
. In this order and in accordance with Defendants’ regular business practices, (Doc. No. 68 at 4-6), inactive emails are subsumed within the latter category of ESI: "Backup Databases.”
. By virtue of metadata’s uncertain relevance to a particular action and generally enormous cost of reproduction, precision in explaining this data’s importance in an initial discovery request is often critical and occasionally dispositive. This general, albeit recent, rule of thumb figures in this Court’s later explication.
. For more on these entities’ controversial history, see Maj. Staff of S. Comm, on Health, Educ., Labor & Pensions, 1 12th Cong , Is the New G.I. Bill Working?: For-Profit Colleges Increasing Veteran Enrollment and Federal Funds 293-314 (Comm. Print 2014). For uncertain reasons, Plaintiffs heavily cite this report in their response. (Doc. No. 69 at 3-4.) This reliance, however, ignores a critical fact. However accurate it may be, a congressional report is not a finding of fact or proof of a wrong committed as a matter of law, regardless of what it may be as "a matter of public record.” (Id.) As this particular document's title indicates, moreover it is not even the formal congressional report accompanying an enacted bill, one of the rare pieces of legislative history occasionally worthy of some judicial solicitude.
. Filings with the Securities and Exchange Commission ("SEC”) are "matters of public record of which ... [a] court can take judicial notice.” Schmidt v. Skolas,
. The program’s name arises from its origins in Title IV of the Higher Education Act of 1965 ("HEA”) as part of President Lyndon B. Johnson’s Great Society. 20 U.S.C. § 1070 et seq. Its purpose "to assist in making available the benefits of postsecondary education to eligible students,” Id. § 1070(a), the statute "was intended to benefit the student, and not the institution,” Bowling Green Jr. Coll. v. U.S. Dep't of Educ.,
. The accuracy of this particular statement is hard to gauge. Technically, Ashford has one physical location in Clinton, Iowa, and the University of the Rockies has its one physical campus in Colorado Springs, Colorado. Ashford's corporate headquarters is, however, in San Diego. This fact suggests that Carter worked not on the "San Diego campus” but at Ashford's corporate center in San Diego.
. From 2002 to 2010, the period of this lawsuit, consideration of this data was permitted so long as recruitment numbers were not the sole determinant of an advisor’s pay. See infra Part II.B.
. For a more detailed elucidation of the relevant statute and regulation, see infra Part II.B.
. That appellation traces its roots to the common law term for such actions: qui tam pro domino rege, quam pro se ipso in hoc parte sequi-tur, meaning "he who uses for the king as well as for himself.” Little v. Shell Exploration & Prod. Co., No. H-07-871,
. As this suit covers actions that allegedly transpired between 2004 and 2010, this safety harbor was in force during the relevant time period. (Doc. No. 41 at 3.)
. Both Parties seem to overlook a critical fact: TIFF production can still contain metadata, depending on the software and process involved.
. Though not particularly relevant at this stage, it is notable that this original request was remarkably broad. The same can be said about the demand that spawned Dispute # 3. See infra Part II.C-D.
. Technically, Plaintiffs employ the word "thus.” (Doc. No. 63 at 8.) Because this adverb, as a linguistic matter, equates to "accordingly” or "consequently” in denotation, the Plaintiffs' own motion effectively contends that these investigations are the reason why the referenced ESI should not be deemed inaccessible. How this can be known, rather than inferred, is unclear.
. Beyond the legal weaknesses in this contention, later to be detailed, this statement is factually and logically incorrect. TIFF, as numerous sources recognize, is a "reasonably usable form,” and by definition ESI placed in inaccessible backup tapes in the regular course of business is "ordinarily maintained” in inaccessible form. To wit, regardless of the production format demanded, already inaccessible data is by definition inaccessible. These defects are further explored below. See infra Part III.
. This denial is the focus of Document Numbers 72 and 73, as Plaintiffs have petitioned for this order’s reconsideration in the former motion.
. Despite the Court’s briefing schedule, a cascade of papers continued unabated. Not only did this torrent hopelessly confuse the issues but it also eventually devolved into attacks of a peculiarly personal nature. This troubling pattern will be the subject of a separate order.
. Once the government declined to intervene, the suit was unsealed on January 2, 2013. (Doc. No. 41 at 3.) Defendants claim to have been generally unaware of their potential legal liability until that precise date; Plaintiffs seem to mock this position. (Doc. No. 63 at 7-8; Doc. No. 72 at 4-8.)
. Whatever one’s thoughts regarding qui tam actions, this statements strike the Court as needlessly dramatic. Plaintiffs—and their counsel— will earn much if this action succeeds, and since a portion of the recovery goes to Plaintiffs, the sum of which the United States has been defrauded will not be entirely remitted to the Treasury.
. "The overwhelming majority of information today is created and stored electronically ... Information that historically would have been kept in 'hard copy’ in a filing cabinet, now originates and largely remains in electronic format, perhaps never reduced to paper.” Francis F.X. Pileggi, Kevin F. Brady & Jill Agro, Inspecting the Corporate “Books and Records" in a Digital World: The Role of Electronically Stored Information, 37 Del. J. Corp. L. 163, 165 (2012). This fact was already true more than a decade ago. For example, according to one estimate, 93% of all information created in 1999 was done so electronically. Philip J. Favro, A New Frontier in Electronic Discovery: Preserving and Obtaining Metadata, 1 B.U.J. Sci & Tech. L. 1, 2 (2007).
. While the Rules were altered in 2006, the substantive rules to discovery of ESI articulated in these cases and their progeny were left undisturbed.
. The Sedona Conference has created a framework for the best electronic discovery practices that attempts to account for both this evolving case law and new technologies. See Larson v. AT & T Mobility LLC,
. For this reason, even inaccessible ESI may be deemed "active,” so long as it is currently and regularly used.
. Significantly, the dangerous incentives created by this division for certain defendants to render more data inaccessible than they would normally do so was recognized prior to the Rules’ formal adoption of the Zubulake approach. Nonetheless, the Committee on Rules of Practice and Procedure recognized that the possibility of sanctions would take care of this "gaming” concern. Comm, on Rules of Practice & Procedure of the Judicial Conference of the U.S., Summary of the Report of the Judicial Conference on the Committee on Rules of Practice and Procedure 32 (2005); Craig Ball, What Judges Should Know About Discovery From Backup Tapes 4 (2007). Thus, so long as the ESI’s inaccessibility occurs in the ordinary course of business and in the absence of any imputation of malicious intent, the modern era’s cost shifting paradigm should be applied.
. As previously noted, see supra Part I, the distinction between "accessible" and “inaccessible” formats tends to "correspondí] closely to the expense of production." Zubulake,
. Conversely, destruction of the resulting backup tapes themselves would be grounds for an adverse inference.
. Plaintiffs ask the Court for more time to depose a person in Defendant’s employ who is most
. The Court, however, will grant one exception. As to any ESI produced after this suit’s unsealing, this Court will split the costs, for it can be reasonably presumed that at that point in time Defendants were surely aware of their legal liability and future plaintiffs’ likely need for active data. See infra Part IV.
. This finding would not affect the Court’s subsequent analysis. Even if Plaintiffs’ requests had been detailed and precise, this cost-shifting analysis in this order’s next two parts would remain mostly unchanged.
. Williams factored in the Aguilar decision upon which Plaintiffs rely. (Doc. No. 67 at 2.)