In Ford Motor Co. v. United States of America, 2009 U.S. Dist. LEXIS 62318 (E.D. Mich. July 21, 2009), United States Magistrate Judge Mona K. Majzoub granted plaintiff's motion to compel discovery requiring the IRS to verify its efforts to search for and retrieve responsive emails.

Plaintiff brought this action against the Internal Revenue Service to recover 10-years worth of interest that had allegedly accrued on overpayments of corporate income tax.  In discovery, the parties disputed whether defendant's document production was complete.  The court ordered defendant to prepare and submit a declaration, under oath, that all responsive documents have been produced, including a detailed description of its attempt to search for and recover responsive emails.  The court, citing FRCP 26(b)(2) ruled that defendant need not produce emails that were not reasonably accessible because they  had been over-written or were irretrievable.

Defendant also failed to produce a privilege log related to certain emails withheld from its production.  Defendant argued that since the documents were withheld on the basis of relevance, privilege and undue burden, producing a log "would defeat the purpose of the Government's unduly burdensome objections."  The court gave short shrift to the argument, overruling defendant's general objections and ordered it to produce the privilege/confidentiality logs.