Retrieval of e-mail from backup media for production in discovery may be costly and time consuming, raising the issue of whether and to what extent the demanding party must share in the expense associated with production of such information. In Toshiba America Electronic Components, Inc. v. Superior Court (2004) 124 Cal.App.4th 762, plaintiff Lexar Media demanded production of 60 categories of “documents,” which Lexar defined to include “electronic mail” and “other forms of electronically or magnetically maintained information.” Defendant TAEC claimed that email correspondence stored on its computer backup tapes was not “readily available” and that recovery of such email correspondence would entail analyzing the data contained on the tapes, identifying and restoring the files, searching the restored files for responsive items, and producing the specified data, at a cost of between $1.5 and $1.9 million. Alternatively, TAEC represented that processing a selection of 130 tapes surrounding 15 key dates would cost at least $211,250. TAEC then requested Lexar to pay some or all of the cost depending upon how many tapes Lexar wanted processed. Lexar refused, and Toshiba petitioned for a writ of mandamus, contending that the court should have applied California CCP section 2031(g)(1) and ruled in its favor. Section 2031(g)(1) states that “[a]ny documents demanded shall either be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand. If necessary, the responding party at the reasonable expense of the demanding party shall, through detection devices, translate any data compilations included in the demand into reasonably usable form.” (emphasis added)

The appellate court ruled that:

(1) California CCP Section 2031(g)(1) expressly shifted to the demanding party the cost of recovering usable information from tapes;
(2) the trial court’s failure to consider the applicability of the discovery statute was abuse of discretion; and
(3) the trial court had discretion to set the reasonable expenses of the demanding party.

Because they were raised for the first time on appeal, the appellate court did not address Lexar’s theories that 1) section 2031(g)(1) was inapplicable since its document demand sought only email communications and not the backup tapes themselves and 2) the expenses were unnecessary and resulted only from TAEC’s refusal to produce the tapes in their original form.

Consequently, in drafting discovery, consider requesting email communications themselves, rather than backup tapes, to preserve an argument that Section 2031(g)(1) is inapplicable. If a dispute arises, one option is to informally propose that the backup tapes be released to a neutral third party for data retrieval, if it appears that expenses claimed by the producing party associated with retrieval and analysis of the email communications are truly unnecessary, as claimed on appeal by Lexar.