In Barker v. Gerould
, 2008 WL 850236 (W.D.N.Y. Mar. 27, 2008), Judge Payson held that sufficiently detailed information would be required before requiring party to produce backup tapes.
In this employment case, plaintiff filed a motion to compel production of e-mails. Although the defendants produced some e-mails, plaintiff sought to compel further production. To evaluate the adequacy of the defendants’ search, Judge Payson ordered the parties to submit an affidavit describing the procedures undertaken. The affidavit, however, merely described the additional work required to restore the deleted data from backup tapes. Finding the record of defendants’ search of the requested e-mail from accessible sources incomplete, the court declined to compel production and instead ordered the defendants to identify individuals with knowledge of the steps taken during collection and allowed time for the plaintiff to depose those individuals.