## Facts

- Jonathan Peskoff sued Michael Faber for alleged financial injuries tied to the operation of a venture capital fund and related entities.
- During discovery, Faber produced electronic documents obtained from Peskoff’s computer, including emails.
- The production omitted essentially all emails to, from, or about Peskoff for a discrete two-year period (mid-2001 to mid-2003).
- Peskoff moved to compel additional production of emails for that period; the dispute centered on whether the emails still existed and could be located, not on relevance.
- Faber asserted no electronic documents were withheld and contended that if emails were not on the produced disks, they no longer existed.
- Faber explained that electronic files were stored on a third party’s server tied to the office sublease arrangement and that counsel had created and produced an “archive” of Peskoff’s electronic files, plus a copy of his hard drive.
- Faber’s counsel acknowledged that, aside from producing the archive and hard drive copy, no broader search of other potential sources had been conducted.

## Issues

1. Whether a producing party satisfies discovery obligations by asserting that missing ESI “no longer existed,” where a large, discrete set of relevant emails is absent from production.
2. What additional steps the court may require to assess and remedy an apparently incomplete ESI search, including sworn disclosures describing search scope and methods and potential forensic measures.

## Decision

- The court did not accept the conclusory claim that no further searches were needed merely because the missing emails were not on the produced disks.
- The court held the motion to compel in abeyance rather than granting or denying it on the existing record.
- The court ordered Faber to submit a detailed affidavit describing the ESI search efforts to date, including what was searched, how it was searched, and what sources remained unexamined.
- The court indicated that additional measures, potentially including forensic examination, could be ordered depending on what the affidavit revealed.

## Legal Principles

- A party responding to ESI discovery must provide a specific, technically informed account of search efforts when production shows an obvious gap in relevant electronic records; conclusory assurances are insufficient.
- Courts may require sworn affidavits detailing ESI locations searched, search methodology (including terms/tools), and retention/deletion/backup practices to evaluate the reasonableness of a search.
- Reasonable ESI searching may require consideration of multiple sources beyond a single user archive or hard drive, including other custodians’ accounts and any centralized server or archival repositories.
- Courts may use graduated remedies in ESI disputes, first compelling transparent documentation of search efforts before ordering more intrusive measures such as forensic examination.

## Conclusion

The court deferred a final ruling on whether additional email production should be compelled and required a detailed affidavit to explain the scope and methodology of the defendant’s ESI search, leaving open the possibility of further ordered searches or forensic examination if the existing efforts could not credibly account for a two-year gap in relevant emails.


Peskoff v. Faber, 2006 WL 1933483 (D.D.C. July 11, 2006)