PSEG Power New York, Inc., turned over more than 3,000 e-mails to a legal adversary. But, the attachments were not intact. As a result, but Magistrate Judge Randolph F. Treece has found that the company still failed to comply with the discovery request, reported the New York Law Journal and reprinted in Legal Technology.
This case should be seen in particular as a warning to companies that archive attachments separately from the email message. Ultimately, the judge ruled that PSEG Power New York, Inc. was repsonsible for the recovery of the attachments AND that the recovery would be at PSEG's expense. So, understanding how the messages are attached by your vendor is critically important.
I am not going to discuss the parituclars of the claims between the parties. It suit relates to the construction of a $25 million, gas-fired PSEG power plant outside of Albany, (PSEG Power New York, Inc. v. Alberici Constructors, Inc.). The relevant issues here have to do with the storage and retrieval of emails and the attachments.
PSEG delivered the 3,000-plus e-mails as requested. But, Martha A. Connolly, attorney for the St. Louis-based Alberici, said many of the attachments that accompanied the messages were not. In some instances, Ms. Connolly said this week in an interview, there were up to 12 attachments per e-mail that became separated from their original messages.
"We spent a lot of our time and money trying to put Humpty-Dumpty back together again," said Ms. Connolly.
How do you recover the attachments? Fortunately, the raw data still existed. But, months of effort were devoted to solving the problem and it remains unresolved. For example, at one point, PSEG supplied a spreadsheet to Alberici that PSEG said would match attachments with e-mails. But it didn't work, according to Magistrate Judge Treece.
What went wrong? Magistrate Judge Treece explains,
"In January 2007, it became evident to Alberici that PSEG had produced emails without the attachments which were referenced as being a part of the emails. Apparently a technical glitch occurred whereby numerous emails were “divorced” from their attachments caused by limitations in the downloading software. ... It appears that the “vendor’s software was not compatible with the HTML format in which PSEG had provided its documents and that this incompatibility had resulted in the parent child link between the emails and attachments being broken.” (source: Post Process Blog)
When the problem was found, the effort continued according to Treece,
"Throughout this ordeal, the raw data was not lost. All 750 gigabytes of unfiltered data remained intact in its original format. Dkt. Nos. 54, n.5; 57 at p. 4. Realizing that the underlying data still existed, the next proposal included PSEG sharing with Alberici’s vendor a sample of the metadata for analysis. However, the dearth of metadata related to the emails and attachments rendered this proposal fruitless. Id. In the interim, the parties’ vendors explored other ways to reverse engineer the available data and “re-marry” the attachments to their emails. This exploration was for naught inasmuch as the data necessary to complete this task was destroyed during PSEG’s collection and formatting of the emails. Id. (source: Post Process Blog)
Since the raw data still existed, PSEG had its own proposal:
PSEG wants Alberici to identify a concise group of attachments that are important and necessary to Alberici and then it would consider producing said attachments ... Or, if Alberici insists on a re-production, PSEG is willing to provide them but at Alberici’s expense.
PSEG estimated it would cost an "unconscionable" $206,000 for it to redo the e-mail and attachment retrieval process. If that were to be done, Alberici should pay for it, PSEG contended. The amount was challenged by Alberici. It's vendor said the work could be done for $37,500. But, in either case, Alberici contends that PSEG should pay for it.
The court ruled it was PSEG's responsibility to put the data together and that it must pay the cost. Treece signed an order Tuesday giving PSEG until Nov. 5 to turn over the e-mails and their related attachments.
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