In Wells Fargo Bank, N.A. v. LaSalle Bank Nat. Assoc., 2009 WL 2243854 (S.D. Ohio July 24, 2009), U.S. Magistrate Judge Michael R. Mertz denied plaintiff's motion to compel backup tape restoration and production finding the information not reasonably accessible based on the high cost of restoration and the  limited utility of the resulting information.  The court, citing the Sedona Conference "Cooperation Proclamation" further ruled that the parties failed to adequately meet and confer under FRCP 26(f).

Plaintiff filed this action in November, 2007.  The parties filed their FRCP 26(f) report in March 2008 which stated that the parties were discussing the feasibility of producing electronic versions relevant documents.  The court imposed a discovery deadline in October 2008 but extended it to early January 2009. Plaintiff filed the motion to compel in May 2009 seeking spoliation sanctions for defendant's failure to maintain and search all of its backup takes that may contain responsive electronically stored information ("ESI"). Defendant contended that it would take six months and almost half a million dollars to restore its backup tapes and noted that plaintiff had failed to preserve and produce responsive backup tape information.

The court denied plaintiff's motion, ruling that it was untimely and that restoration of the backup tapes was disproportionate to the likely utility of doing so. "The estimated cost of restoration is out of proportion to the amount of money involved in this case and the time required for restoration would certainly require extending the trial date. Because of [defendant's] policy of printing hard copies of important emails for the files on its loans and the loan files having been produced, the likelihood of much additional information is small."

The court, citing Rule 26(f) and the Sedona Conference's Cooperation Proclamation, also found that the parties' dispute was the result of counsels' failure to "deal systematically with ESI problems and possibilities at the outset of litigation, instead of filing one-paragraph boilerplate statements about ESI and waiting for the explosion later."