Major Tours, Inc. v. Colorel

Alleging unlawful racial discrimination in the inspection of buses, Major Tours, Inc. and others (plaintiffs) sued New Jersey state officials and agencies (State Defendants) as well as a repair shop and its owner (collectively, defendants) in a federal district court. State Defendants were first put on notice of the claim when they received a letter threatening litigation on September 11, 2003. A formal litigation hold letter was not issued by State Defendants until March 22, 2007, however. During pretrial discovery, plaintiffs requested the production of State Defendants’ emails going back to a date prior to issuance of the litigation hold. State Defendants moved for a protective order allowing them not to produce emails from before 2008 on the ground that those emails had been deleted from the server and were preserved on backup tapes that would be difficult and expensive to access, costing approximately $1.5 million. Plaintiffs argued that State Defendants should not be relieved from producing the emails given that their inaccessibility was caused by State Defendants’ failure to preserve the data as legally required. A magistrate judge ruled in favor of State Defendants, concluding that, on balance, plaintiffs’ need for the evidence did not outweigh the burden of producing it, notwithstanding the culpability of State Defendants in causing the burden. The magistrate found, in particular, that given the amount of data already produced, plaintiffs were unlikely to find much relevant, nonredundant information in the backup tapes. In addition, the parties agreed that State Defendants’ negligence was unintentional. The magistrate ordered that if plaintiffs still desired production of emails from the backup tapes, a limited number of tapes could be accessed, with plaintiffs sharing, or bearing entirely, the cost of recovery, depending on the date of the tapes recovered. Plaintiffs appealed.