In Infinite Energy, Inc. v. Thai Heng Chang, 2008 WL 4098329 (N.D. Fla. Aug. 29, 2008), the court ordered the defendant, plaintiff's former employee, to take affirmative steps to obtain copies of relevant emails in his personal Yahoo.com account which he claimed had been deleted by the internet service provider.  The court further ordered the defendant to file a status report advising the court and the plaintiff of his efforts in that regard.

Plaintiff corporation brought an action against a former employee for alleged misappropriation of trade secrets and other related claims.  In discovery, plaintiff sought emails from defendant's personal Yahoo.com account.  Defendant represented to plaintiff and the court that he could not produce the emails because they had been destroyed by Yahoo!.  In support of his contention, he provided a copy of a generic response from Yahoo! regarding account deactivation.  Plaintiff's motion to compel and request for sanctions against the defendant raised the following issues: (1) defendant's failure to produce emails from his Yahoo! account; (2)  defendant's failure to produce documents produced in another case; and (3) a challenge to defendant's privilege assertion as it related to certain documents.

The court held that the defendant's emails were highly relevant and the court would not accept defendant's blanket assertion that the emails no longer existed due to routine deletion by Yahoo!. Rather, the court ordered the defendant to undertake all actions necessary to obtain the emails and report back to the court on his progress.  The court agreed that the defendant did not need to re-produce documents from the related Georgia case.  However, the court did require defendant to specifically identify by Bates number, all potentially relevant documents.  Finally, the court required the defendant to create a privilege log that conformed with the requirements of FRCP 26(b)(5)(A).