The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6 SAN JOSE DIVISION
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8 MAXIMILIAN KLEIN, et al., Case No. 20-cv-08570-LHK (VKD)
9 Plaintiffs,
ORDER RE DISCOVERY DISPUTE RE
10 v. ESI PROTOCOL
11 FACEBOOK, INC., Re: Dkt. Nos. 133, 160
Defendant.
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13 As directed by the Court, the parties report that they have reached agreement on several
14 aspects of their dispute concerning the protocol for preservation, collection, review, and
15 production of electronically stored information (“ESI”). Dkt. No. 160. The parties continue to
16 disagree regarding two matters: (1) whether backup systems and/or tapes used for disaster
17 recovery are not reasonably accessible and need not be preserved, and (2) whether the protocol
18 should include a provision permitting a party to determine that a particular source of ESI need not
19 be preserved if doing so is not proportional to the needs of the case. Id. at 2, 7.
20 Backup Systems and Tapes
21 As to the first dispute, the Court agrees with Facebook that, as a general rule, backup
22 systems and tapes that are maintained solely for the purpose of disaster recovery are not
23 reasonably accessible for purposes of Rule 26(b)(2)(B) and need not be preserved. However, this
24 general rule is premised on an accepted understanding of the nature of backup systems and tapes,
25 including: (i) the information they contain is duplicative of other more accessible sources of
26 information, (ii) they are not actively used for information retrieval, (iii) custodian-specific
27 information may be stored across multiple tapes or systems, (iv) they are regularly recycled, and
1 See, e.g., Margolis v. Dial Corp., No. 12-CV-0288-JLS WVG, 2012 WL 2588704, at *3 (S.D.
2 Cal. July 3, 2012) (describing characteristics of backup tapes used for disaster recovery); Zubulake
3 v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (same). Notwithstanding this general
4 rule, there may be circumstances in which preservation of backup tapes may be warranted under
5 Rule 26, such as when emails of a “key player” in the litigation are not otherwise available but are
6 stored on particular backup tapes. See Margolis, 2012 WL 2588704, at *2 (citing Zubulake, 220
7 F.R.D. at 218).
8 The parties’ submission is missing two pieces of information that the Court requires in
9 order to resolve this dispute. First, it is not clear from the joint submission whether Facebook’s
10 backup systems and/or tapes have the usual characteristics that make this category of ESI not
11 reasonably accessible. Second, it also is not clear whether backup tapes may hold the ESI of any
12 key custodians (or other critical sources of information) that is not otherwise available from
13 accessible sources. The parties seem to recognize that this information might be important to
14 resolution of this dispute, but each insists another party bears the burden to provide the
15 information. The Court therefore requires the parties to undertake additional efforts to resolve this
dispute, as follows:
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1. Facebook1 must provide plaintiffs with information regarding the characteristics of its
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backup systems and tapes that make them not reasonably accessible. If this
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information does not persuade plaintiffs that these materials are, in fact, not reasonably
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accessible, then Facebook may file a declaration with the Court attesting to the facts on
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which it relies for its view that these materials are not reasonably accessible.
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2. Plaintiffs, collectively, may identify up to 6 key custodians or other sources of
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information (e.g., a database) as to which they would like Facebook to determine
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whether custodian- or source-specific ESI is reasonably accessible from sources other
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than backup systems and tapes. Facebook shall investigate the ESI for these 6 key
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custodians or sources and shall confirm that Facebook has preserved their ESI in other
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1 reasonably accessible sources. If Facebook discovers that the reasonably accessible
2 ESI contains a gap for any of the 6 key custodians or sources, it shall confer with
3 plaintiffs regarding whether and how preservation of backup systems and/or tapes may
4 address any such gap for purposes of ESI preservation.
5 The parties shall advise the Court of their further efforts to resolve this dispute by
6 November 5, 2021, unless they agree to a different date.
7 Proposed Section 4(e)
8 As to the second dispute, Facebook proposes adding a new Section 4(e) to the ESI protocol
9 which would make clear that a party may determine, presumably without consulting any other
10 || party or seeking a further court order, that a particular source of ESI need not be preserved if the
11 party determines that preservation of such ESI is not proportional to the needs of the case, such as
12 || for reasons of undue burden or cost. Dkt. No. 160 at 7. Plaintiffs object to this proposal as an
5 13 effort by Facebook to unilaterally reverse the concessions it made when it agreed to remove
S 14 || certain sources of ESI from the list of ESI that need not be preserved. Jd. at 4. Plaintiffs also
3 15 object that to the extent the proposed language is intended to capture a statement of the law, it is
a 16 unnecessary. Id.
17 The Court will not require the ESI protocol to recite a statement of the law as an operating
18 || principle. While the Court agrees that considerations of relevance and proportionality should
19 guide all aspects of discovery, the parties have (to their credit) attempted to address these concerns
20 || by formulating specific guidelines for the conduct of discovery in this case, including an ESI
21 protocol. If Facebook or any other party determines that application of a particular guideline—
22 such as the obligation to preserve a specific category of ESI—would be disproportionate to the
23 needs of the case, the parties should confer about the problem, and if they cannot resolve it
24 || themselves, they may raise it with the Court.
25 IT IS SO ORDERED.
26 Dated: October 12, 2021
27 Uiggiin win. K, Ri □□□□□□□
VIRGINIA K. DEMARCH
28 United States Magistrate Judge