McPEEK V. ASHCROFT
202 F.R.D. 31 (D.D.C. 2001)
NATURE OF THE CASE: McPeek (P) sued Ashcroft (D), his federal agency employer and individuals, alleging that he was subjected to retaliation for complaining of sexual harassment. During the course of discovery, the employee sought to compel the agency to search its computer backup systems for deleted data.
FACTS: P worked for the Bureau of Prisons ('BOP'). Upon his promotion to Assistant to the Director in 1990, then-Director Michael Quinlan ('Quinlan'), began to sexually harass him and did so for the next two years. P filed an informal complaint against Quinlan, with the Department of Justice ('DOJ') Equal Employment Opportunity Staff. A Settlement Agreement was reached on September 30, 1992. P and Quinlan were to keep his complaints confidential and was to be transferred to the Management and Planning Staff ('MPS'), Justice Management Division ('JMD'), of DOJ. By 1994, P was working for the Justice Performance Review ('JPR'), under the Office of Policy Development and would ultimately become the Deputy Director of JPR, where he reported to Robert F. Diegelman ('Diegelman'), Director of MPS. Despite the confidentiality of the settlement agreement, P's claims against Quinlan were known by the people with whom he worked and that he suffered humiliation and retaliation at their hands. After hiring counsel in July 1998 to pursue formal legal remedies beginning with EEO counseling, he suffered renewed retaliation efforts. In discovery, P wants to force DOJ to search its backup systems since they might yield, data that was ultimately deleted by the user but was stored on the backup tape and remains there today. D objected because there were never system wide backups which perfectly preserved all data. Backup were made to permit recovery from a disaster, not as archival preservation. Some periods of time are thus missing and the backups do not necessarily contain all emails sent or from a user, or all documents. In addition, unless a user deletes emails or documents between backups, each backup tape might contain many duplicate emails and documents that were captured on previous backup tapes. The tapes would also have to be restored to be readable on current systems. Merely restoring the emails from a single backup would take 8 hours and cost no less than $93 per hour.
ISSUE:
RULE OF LAW:
HOLDING AND
DECISION:
LEGAL ANALYSIS:
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