UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NISSAN NORTH AMERICA, INC.,

Plaintiff, CIVIL ACTION NO. 09-CV-11783

vs.

DISTRICT JUDGE LAWRENCE P. ZATKOFF

JOHNSON ELECTRIC NORTH MAGISTRATE JUDGE MONA K. MAJZOUB

AMERICA, INC.,

Defendant.

_____________________________/

ORDER DENYING PLAINTIFF’S MOTION FOR PROTECTIVE ORDER 

(DOCKET NO. 79)

This matter comes before the Court on Plaintiff’s Motion For Protective Order. (Docket no.

79). Defendant filed a combined brief in response and in support of a Cross-Motion To Compel

Compliance With The Court’s May 5, 2010 Order and For Sanctions. (Docket no. 92, 101). 

Plaintiff filed a reply brief. (Docket no. 108). The parties filed a Joint Statement of Resolved and

Unresolved Issues. (Docket no. 120). On January 14, 2011 the Court struck Defendant’s crossmotion. (Docket no. 104). The Motion For Protective Order has been referred to the undersigned

for decision pursuant to 28 U.S.C. § 636(b)(1)(A). (Docket no. 89). The Court heard oral argument

on the motion on February 7, 2011. This matter is now ready for ruling.

Plaintiff claims to have produced in excess of 1.79 million pages of documents during the

course of discovery, along with 84,000 pages of documents from its non-party parent company in

Japan. As Plaintiff points out in its motion, this Court entered an Order on May 5, 2010 which

required Plaintiff to supplement its discovery responses to specifically identify sources of ESI it did

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not search because the sources are not reasonably accessible, the reasons for its contention that the

ESI is not reasonably accessible without undue cost and effort, and the anticipated costs and effort

involved in retrieving that ESI. (Docket no. 43). Defendant claims that Plaintiff’s supplemental

discovery responses contain misstatements and omissions and call into question Plaintiff’s

preservation and production of ESI. As a consequence, in order to verify that all of Plaintiff’s

reasonably accessible systems were searched for relevant ESI, Defendant claims that it informally

asked Plaintiff to produce (a) a data map to show what data is stored on each of Plaintiff’s systems,

who uses the systems, the retention of the data stored and where and how the data is backed up or

archived; (b) document retention policies; (c) tracking records and/or requests for restores; and (d)

backup policies. According to Defendant, Plaintiff was required to provide responses to these four

requests in order to comply with the May 5, 2010 Order.

Plaintiff filed the instant Motion for Protective Order in response to Defendant’s informal

discovery requests. In its motion Plaintiff argues that Defendant seeks discovery of its “not readily

accessible” systems and has demanded that Plaintiff conduct broad and duplicative searches of

witnesses whose documents have already been collected. Plaintiff now moves for a protective order

denying Defendant discovery of (1) system-wide searches of Plaintiff’s systems and custodians

beyond what Plaintiff has already provided; (2) Plaintiff’s “not readily accessible” sources identified

by Plaintiff, including backups; (3) Plaintiff’s record retention practices or disaster recovery backup

policies; (4) Plaintiff’s tracking records and requests for computer restores to IT and vendors; and

(5) a “data map” to provide information on all of Plaintiff’s systems. (Docket no. 79).

Federal Rule of Civil Procedure 26(c) allows the Court to issue a protective order for good

cause shown to protect a party from annoyance, embarrassment, oppression, or undue burden or

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expense. Plaintiff has the burden of showing good cause for a protective order. Plaintiff first asks

for a protective order denying Defendant discovery of system-wide searches of Plaintiff’s systems

and custodians beyond what Plaintiff has already provided. Defendant argues in response that it has

not asked Plaintiff to conduct additional searches. (Docket no. 79, Ex. C - 7/28/10 letter). Rather,

Defendant argues that it merely asked for confirmation that Plaintiff searched its systems for

relevant ESI for forty-one employees who are either members of the Task Force assigned by

Plaintiff to the recall issue, or who are listed in Plaintiff’s Rule 26 disclosures.

Letter correspondence between the parties shows that Defendant did not ask that a search be

made for ESI related to these forty-one individuals, only that Plaintiff confirm whether the

computers, email accounts, network shares, and databases of these individuals were searched.

(Docket no. 79, Ex. C - 7/28/10 letter). Since Plaintiff claims to have searched the documents of its

key custodians and states that it has already produced all relevant documents for all readilyaccessible sources, it should be able to provide this confirmation without significant effort.

Presumably if Plaintiff did not search the computer systems of all or some of these forty-one

individuals it can provide justification for its decision`. Since Defendant has not asked for additional

searches, Plaintiff has failed to show good cause for issuing a protective order preventing Defendant

from seeking system-wide searches of Plaintiff’s systems and custodians beyond what Plaintiff has

already provided. Plaintiff’s motion will be denied with regard to this request.

Next, Plaintiff moves for a protective order preventing Defendant from taking discovery of

Plaintiff’s “not readily accessible” sources identified by Plaintiff, including backups. Plaintiff

contends that it has carefully searched for and produced relevant, non-privileged ESI from its readily

accessible data systems, including email, group directories, user shares, personal computers and

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other systems. Specifically, Plaintiff claims to have searched Outlook email data and PST files; hard

drives on individual computers, network shares mapped as various drive letters; and the ANEMS,

IDOCS, IDEAS, GCARS, WRAPS, CPIA, VHF, CICS PO system, and Legacy business databases.

(Docket no. 79). In addition, Plaintiff states that it identified key custodians who were likely to have

responsive information relevant to this case and had their documents searched. Plaintiff also asserts

that it requested documents and information from its non-party parent company, and that both it and

its parent company searched hard copy files for paper documents, for documents stored on CD,

DVD, or other external sources, and for physical parts.

Plaintiff has identified in table format electronic data sources identified by key custodians

as being potential sources of responsive information and claims that it identified, processed, and

produced responsive information from these systems. (Docket no. 79 at 4-7). Plaintiff contends that

the only systems it did not search are its disaster recovery or backup systems for email, network

shares, and business databases because they are not readily accessible. Plaintiff argues that

information on its backup systems is not reasonably accessible because of undue burden and cost.

Plaintiff also asserts that a search of its backup or “not readily accessible” systems would fail to

produce new data because the information on these systems is duplicative of information on

Plaintiff’s main systems which have already been searched. In support of its claims Plaintiff

submitted under seal a declaration of Forrest Smith, Manager of Distributed Service Delivery

Management for Plaintiff, which identifies the reasons Plaintiff did not restore its backups for the

purpose of searching for relevant ESI, and the estimated cost and associated effort that would be

required to search its backup systems. (Docket no. 81).

Federal Rule of Civil Procedure 26(b)(2)(B) provides:

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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.

Fed.R.Civ.P. 26(b)(2)(B)

The Court is satisfied after having read the Smith declaration along with the parties’ briefs

and attached exhibits, and after hearing the parties’ oral arguments on the motion, that Plaintiff’s

backup systems are not reasonably accessible and that Defendant has not shown good cause to

search these systems. However, Plaintiff has not shown that Defendant asked it to search its “not

readily accessible” backup systems. Rather, Defendant asked for Plaintiff’s backup policies, and

its tracking records and requests for restores, claiming that data that has been restored is reasonably

accessible. (Docket no. 79, Ex. C - 7/28/10 letter). The Court finds that Plaintiff has not shown good

cause for a protective order precluding Defendant from seeking discovery of Plaintiff’s backup

policies and tracking records or requests for restores. Furthermore, because Defendant has not asked

Plaintiff to search its “not readily accessible” backup systems, there is no basis for the Court to enter

a protective order preventing discovery of these systems.

Plaintiff next moves for a protective order denying Defendant discovery of its record

retention policies. Letter correspondence between the parties shows that Defendant asked Plaintiff

for its document retention policy. (Docket no. 79, Ex C - 7/28/10 letter). The Court finds that

Plaintiff has failed to show good cause to preclude Defendant from seeking discovery of this policy.

Plaintiff next asks for an order providing that Plaintiff is not required to generate a data map

to show the age of data on all of Plaintiff’s systems. Letter correspondence between the parties

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shows that Defendant asked Plaintiff for a data map to show what data is stored on each of Plaintiff’s

systems, who uses the systems, the retention of the data stored and where and how the data is backed

up or archived. Federal Rule of Civil Procedure 26 requires parties to make certain mandatory

disclosures during the initial stages of discovery. Generally a party must, “without awaiting a

discovery request,” provide “a copy - or a description by category and location” of all electronically

stored information that the disclosing party has in its possession, custody, or control and may use

to support its claims or defenses. Fed.R.Civ.P. 26(a)(1)(ii). In order to comply with this mandatory

disclosure counsel must become knowledgeable about their client’s computer systems and ESI at

the onset of litigation. Hence, Plaintiff’s counsel should have access to information from which it

could readily discern what data is stored on each of Plaintiff’s systems, who uses the systems, the

retention of the data stored and where and how the data is backed up or archived. Plaintiff has not

shown that it is in need of an order protecting it from annoyance, embarrassment, oppression, or

undue burden or expense related to Defendant’s request for this information. The Court will

therefore deny Plaintiff’s motion as to this request.

In Defendant’s responsive brief and at the hearing on this motion Defendant made a number

of broad accusations that Plaintiff has engaged in spoliation of evidence, has produced discovery

with wide gaps of missing information and emails with missing metadata, has moved data to backup

systems in order to avoid having to produce it, and has failed to produce information from its parent

company. It is worth noting that while Plaintiff will not prevail on its Motion for Protective Order,

the Court is presently satisfied that Plaintiff has diligently sought to meet its discovery obligations

and has produced a substantial number of documents in response to Defendant’s discovery requests.

It is also worth noting that as of the date of the hearing on this motion not a single deposition had

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been taken in this case, despite the fact that discovery has been ongoing for well over one year and

is scheduled to close in a matter of months. Defendant’s baseless accusations of spoliation, missing

metadata, and deceptive and unethical discovery practices are wholly unsubstantiated. Likewise,

Defendant’s unsupported allegation that Plaintiff has failed to produce information from its nonparty parent company was put before the Court without any indication as to which documents

Defendant seeks or any argument or proof to show that Plaintiff has sufficient control over the

phantom documents to trigger its disclosure obligation.

Defendant also argues that Plaintiff has not identified its search criteria or explained what

date ranges or keywords were used to collect responsive documents. “Electronic discovery requires

cooperation between opposing counsel and transparency in all aspects of preservation and

production of ESI..” William A. Gross Constr. Assoc., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D.

134, 136 (S.D. N.Y. 2009). Defendant is of course entitled to know what search criteria was used

in retrieving relevant ESI. However, Plaintiff contends that Defendant has not committed to or

requested specific search terms or system limitations. (Docket no. 79 at 12 n.3). If this is so, it is

patently unclear to the Court why Defendant would not propose its own search criteria or otherwise

attempt to work cooperatively with the Plaintiff on this issue long before Plaintiff searched its

systems for ESI. Defendant makes every effort to tie its requests for a data map, document

retention policies, tracking records and/or requests for restores, and backup policies to the Court’s

May 5, 2010 Order, going so far as to assert that Plaintiff has egregiously violated the Order by

failing to provide it with this information. Indeed, Defendant asks the Court to compel production

pursuant to that Order. The May 5, 2010 Order does not require Plaintiff to provide this information

to the Defendant. Instead, with regard to ESI, the Order required Plaintiff to identify sources of ESI

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it did not search because they are not reasonably accessible, the reasons for its contention that the

ESI is not reasonably accessible without undue cost and effort, and the anticipated cost and effort

involved in retrieving that ESI. Plaintiff has complied with that provision of the Order.

The Court construes Defendant’s requests for a data map, document retention policies,

tracking records and/or requests for restores, and backup policies as new, informal discovery

requests that are separate and distinct from the May 5, 2010 Order. Therefore, Plaintiff does not

need to provide this information in to be in compliance with that Order. Furthermore, the Court will

not compel production based on informal letter requests, particularly where the matter is before the

Court only on a Motion for Protective Order.

Plaintiff has not shown good cause for issuance of a protective order at this time.

Accordingly, for the reasons stated herein Plaintiff’s motion will be denied.

IT IS THEREFORE ORDERED that Plaintiff’s Motion For Protective Order (docket no.

79) is DENIED.

NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(a), the parties have a period of fourteen days from the date of

this Order within which to file any written appeal to the District Judge as may be permissible under

28 U.S.C. § 636(b)(1).

Dated: s/ 

MONA K. MAJZOUB

UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE

I hereby certify that a copy of this Order was served upon Counsel of Record on this date.

Dated: 

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Case Manager

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