Company Spared Restoration Of Back-Up Tapes Since It Followed Normal Retention Policy

Posted by Gregg Mayer on Thursday, March 6th, 2008   

In a recent decision in Georgia, a federal judge ruled that the costs to search a company’s back-up tapes for old employee email outweighed the benefits of finding any evidence that may be on that email. Consequently, the company, which regularly and in good faith enforced its email retention policy, did not have to pay to restore the back-up tapes.

In Petcou v. C.H. Robinson Worldwide, Inc., the plaintiffs sued C.H. Robinson Worldwide for employment discrimination. Specifically, the plaintiffs complained about inappropriate conduct and pornographic email and images on co-workers’ computers.

As part of the lawsuit, the plaintiffs wanted to see all of the email of certain branches of the company for a six-year period, both from former and current employees. However, C.H. Robinson Worldwide regularly enforced it retention policy; as a result, most of the email had been deleted and only available on back-up tapes.

Here is how the court explained C.H. Robinson Worldwide’s email policy in its February 25, 2008 opinion:

When an individual employee deletes an e-mail, that e-mail can be easily retrieved for only 8 days thereafter…When an individual leaves Defendant’s employ, his e-mails are automatically deleted from Defendants’ servers after 10 days…While deleted e-mails can be retrieved from back-up tapes, after these 8 or 10 day periods, the costs to do so are very high. To conduct a search for e-mails with sexual content, a third-party vendor would have to look through the e-mail of all of Defendant’s approximately 5,300 employees because Defendant does not have servers dedicated to individual branches…Each back-up tape contains three to five days of e-mails. The cost of retrieving e-mails from one back-up tape ranges from $325 to $365 per tape. The cost of retrieving about two years’ worth of e-mails for one employee is approximately $79,300.

With such high costs, the court ruled the back-up tapes were not reasonably accessible and did not have to be restored unless the plaintiffs could show “good cause.” Under the Federal Rules of Civil Procedure, a party may have to restore and retrieve inaccessible electronically stored information (“ESI”) if the other side can show “good cause” for its production.

Turning to the issue of “good cause,” the court ruled that the costs to restore the back-up tapes outweighed the benefit of any information contained in the email. Consequently, the court denied the plaintiffs’ efforts to force C.H. Robinson Worldwide to restore the back-up tapes.

Interestingly, C.H. Robinson Worldwide had continued following its normal retention policy even after the plaintiffs had filed an EEOC complaint in 2001 alleging the company-wide sexual harassment. The plaintiffs argued the company should have been under a litigation hold to preserve all of the email.

The court, however, ruled that since the plaintiffs did not ask for a company-wide preservation of email when the complaint was filed, then C.H. Robinson Worldwide did not act in bad faith in continuing to follow its retention policy. The only email the company would have to produce was the undeleted email from current employees specifically named in the lawsuit and any email that the company specifically had saved.

In short, because C.H. Robinson Worldwide followed it email retention policy in good faith, then the court was not going sanction the company for deleted email.

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