Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

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Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 48 of 139 including emails, had been superficial. The defendants had looked for readily accessible emails that were still on the computers they still had. They had not identified any sources of relevant information that were not reasonably accessible. They had no information about whether any of the emails that had been deleted or were otherwise not reasonably accessible could be recovered and how much time and expense might be required. The defendants were ordered to conduct that inquiry and report the results. 30 Rimkus deposed Allen Bostick, an information technology (“IT”) consultant that U.S. Forensic used in the fall of 2006. Bostick’s deposition revealed that Homestead Technologies web-hosted U.S. Forensic’s email accounts beginning on November 15, 2006. On December 19, 2006, Bostick switched U.S. Forensic to an in-house email host using a small business server. U.S. Forensic used a series of external hard drives for backup storage. The documents on U.S. Forensic’s network, including emails, were backed up every night using backup software and the external hard drives. On April 4, 2007, Bostick advised U.S. Forensic that the software for the type of hard drive U.S. Forensic was using was not meant to back up a small business server. According to Bostick, the hard drive was subsequently returned to the manufacturer as defective. On April 5, 2007, U.S. Forensic switched to different backup software. Every night, the software created a local copy on the server and saved a backup copy onto two external hard drives. Near the end of 2007, one of these drives 30 See Fed. R. Civ. P. 26(b)(2)(b) (“A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.”). 48
Case 4:07-cv-00405 Document 450 Filed in TXSD on 02/19/10 Page 49 of 139 failed. Bostick testified that space on the external hard drives became a concern around late 2007. (Docket Entry No. 314-9, Deposition of Allen Bostick at 148:1–:4). In late 2007, U.S. Forensic began using three external hard drives and subsequently began using different backup software. The new software did not create a backup image on the server. Instead, the backup was directly to the external hard drive. On May 28, 2009, the defendants reported that three backup images had been located. Bostick was able to restore one of these images but two others were corrupted and U.S. Forensic no longer had the software to restore them. According to the defendants, the hard drives had to be sent to the software company for any attempt at restoration. The defendants reviewed the emails recovered from the restored backup image and determined that none were relevant The defendants also retained Roddy Orgeron, an IT consultant, to determine the time, cost, and likelihood of obtaining information from the corrupted drives. Orgeron could not open the files because the hard drive was damaged and because he did not have the necessary software. According to Orgeron, there was some possibility that some backup files could be recovered, but it would cost between $2,000.00 and $10,000.00 and there was a slim likelihood of success because of the damage to the hard drive. On May 29, 2009, Rimkus continued with DeHarde’s deposition. DeHarde produced several responsive emails that he had found in his Yahoo! mail account. These emails were sent to DeHarde from other Rimkus employees while DeHarde still worked at Rimkus. DeHarde received these emails at his Rimkus email address but forwarded them to his 49
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Rimkus Consulting Group Inc. v. Cammarata - Ballard Spahr LLP

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