## Facts

- Steven McPeek, a U.S. Department of Justice employee, sued the Attorney General and other federal officials alleging retaliation and related misconduct following a settlement of earlier workplace complaints.
- During discovery, McPeek sought emails that were no longer available on active systems and moved to compel restoration and searching of DOJ computer backup tapes.
- DOJ opposed the request, asserting that its backups were maintained for disaster recovery rather than archiving, that restoration would be technically difficult and expensive, and that it was uncertain whether relevant emails would be found.
- The court treated the request as seeking access to potentially probative workplace communications while recognizing that backup tapes contain data indiscriminately and are poorly suited for targeted retrieval.
- The dispute centered on how to apply Rule 26 limits on discovery given cost, burden, and uncertain benefit, and whether costs should be allocated to the requesting party.

## Issues

1. Whether Rule 26 permits compelling restoration and searching of backup tapes when the cost is high and the likelihood of finding relevant, non-duplicative material is uncertain.
2. Whether the court should order broad restoration immediately or require a limited sample to obtain evidence about cost and usefulness before expanding discovery.
3. How proportionality and cost allocation should be evaluated for electronic discovery from backup tapes.

## Decision

- The court granted the motion to compel in part and ordered a limited “test run” restoration and search of backup tapes rather than an immediate, comprehensive restoration.
- The court confined the test to emails associated with a specific supervisor and a defined one-year period tied to the timeframe of the renewed retaliation allegations.
- The court required the producing party to collect information during the test run concerning the time, expense, and volume of responsive material located.
- The court deferred any final ruling on cost-shifting until the sample results provided a factual basis to assess proportionality and likely benefit.

## Legal Principles

- Under Rule 26, discovery may be limited when it is unreasonably cumulative, when the requesting party has had adequate opportunity to obtain the information, or when the burden or expense outweighs the likely benefit.
- For inaccessible electronic sources such as backup tapes, cost and burden cannot be evaluated reliably without evidence about both restoration expense and the expected yield of relevant, non-duplicative information.
- Courts may use sampling as a practical method to generate empirical data needed to decide scope and cost allocation for costly electronic discovery.
- Cost allocation may turn on an incremental-benefit (marginal-utility) assessment: the weaker the expected additional value of further restoration relative to its cost, the stronger the case for limiting discovery or shifting costs.

## Conclusion

The court ordered limited backup-tape restoration and searching as a sampling measure, postponing cost-shifting and any broader restoration decision until concrete information about cost and evidentiary yield allowed a proportionality and marginal-utility analysis under Rule 26.


McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001)