In Capitol Records, Inc., et. al. v. MP3 Tunes, LLC, 2009 U.S. Dist. LEXIS 73447 (S.D.N.Y. Aug. 13, 2009), U.S. Magistrate Judge Frank Maas limited the production of active emails deemed not reasonably accessible due to undue cost or burden and cautioned both parties to be mindful of their responsibility to meaningfully meet and confer.

Plaintiffs' five music industry record labels alleged violation in their music copyrights through defendant's operation of two websites which give users access to third-party websites from which they can stream and listen to music.  In the course of discovery, Plaintiffs requested defendants produce all documents concerning the functionality, development and operation of its storage of user files, streaming, play download, and synching features.  In addition, plaintiffs sought communications regarding functionality, structure, operations and defendant's source code.

The court previously ruled that plaintiffs' request was overly broad and ordered the parties to meet and confer and to develop search terms related to a narrowed focus on defendant's web site.  Instead, defendant unilaterally searched email from a one-month period using the word "design" as the only search term.  The court noted that counsel's failure to meaningfully meet and confer was at odds with Magistrate Judge Andrew Peck's recent "wake-up call" regarding the need for cooperation concerning e-discovery, citing William A. Gross Constr. Assoc., Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009) and the Sedona Conference Cooperation Proclamation.  In addition, the court cautioned counsel that if they could not confer in good faith, the court would require all meet and confer sessions be videotaped for the court's review.

During the parties subsequent meet and confer, they agreed upon 10 search terms, but could not agree upon 30 or so other terms.  The court found all of the search terms relevant and required defendant to run the appropriate searches.

Defendant also complained about plaintiffs' lackluster e-mail production efforts while plaintiff's countered that searching email systems required plaintiff's to image hard drives of relevant custodians and do searches off of those hard drives because there was "no centralized server or set of servers that would enable them to short-circuit the effort."Moreover, plaintiffs maintained fifteen servers providing e-mail service using Exchange 2003 software to more than 4,000 users.  These servers are backed up each weeknight, as well as weekly, monthly, and quarterly.

The court ruled that under FRCP 26(b)(2)(B) defendant's active email server was not reasonably accessible due to undue cost or burden based on the fact that there were approximately 120 potential custodians whose information would need to be searched consisting of approximately 2 terabytes.  Plaintiffs hosted no e-discovery software on their servers and had no way to conduct centralized email searches of users without downloading them to a separate file and relying on the services of an outside vendor.

The court ordered plaintiffs to produce documents sufficient to enable defendant to identify plaintiffs' 20 most senior relevant marketing employees and confer with defendant to select 15 employees whose emails will be searched using select search terms.