In Wright-Jackson v. HIP Health Plan, 2009 WL 1024244 (S.D.N.Y. April 15, 2009), U.S. Magistrate Judge Douglas Eaton denied plaintiff's motion to compel further discovery of electronically stored information, absent evidence that the documents sought actually existed.

This case was predicated on an employment discrimination claim brought on behalf of a pro se plaintiff.  Plaintiff alleged that certain documents existed or should exist, but were yet to be produced by defendant.  Defendant contended that all responsive documents had been produced.  The discovery dispute between the parties related to documents that plaintiff knew existed at one time, but were destroyed by defendant several years prior to plaintiff's termination.  Defendant's information technology witness testified that e-mails and voice mails were, for the most part, "long gone".  The court was also skeptical of plaintiff's request for screenshots of every electronic document produced as well as all e-mails, including unread emails, between her and eight other named individuals.  While plaintiff contended that the requests were essential to her case, the court noted that she failed to provide any evidence as to why the e-mails were relevant.  The court found the request for screen shots was unduly burdensome given that defendant had already produced the documents themselves.

The court, while agreeing with plaintiff that some of the e-mails and documents may have existed at one time, denied her request for further production finding that she failed to meet her burden and establish that that certain documents still existed and were in the care, custody, and control of the defendant.