In 2015, Magistrate Judge William V. Gallo, in United States ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225 (S.D. Cal. 2015), ruled on a dispute over the production of data from backup tapes, and the format used for email productions.


The Plaintiffs contended that the Defendants were responsible for intentionally altering data transferred to backup tapes because litigation was anticipated, and this transfer constituted a form of intentional spoliation. The Defendants in turn asserted that the data was inaccessible and so the cost of production should shift to the Plaintiffs. The requested data was matrices used by the Defendants to track the their performance as enrollment advisors to the Plaintiffs, which in turn was used to determine how much employees were paid. The Plainiffs contended this is a violation of the Higher Education Act's prohibition against incentive payments.


The backup tapes in question were used for disaster recovery. The encrypted tapes could be used to store more than 1 TB of data. The Defendants stated that it was only possible to restore one tape per day, and that the full restoration process would take several months and cost more than $2.2 million for the data for all of the relevant custodians to be converted to native format. These facts would make the production unduly burdensome. The Defendants had been transferring data to backup tapes for a long time, prior to the suit's unsealing. (This is a qui tam action, which the Defendants only received notice of when the government chose not to intervene.)


The Plaintiffs argued that the Defendants as a large 'billion dollar' public company which emphasizes its technologcal capabilities should have the resources to handle the production, and noted that their suit concerned more than $2 billion in damages. They faulted the Defendants for failing to disclose how their backup tape system worked.


In his decision, Judge Gallo citing Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003)), acknowledged that a party is not entitled to cost shifting if it converts data into an inaccessible format when it's reasonably foreseeable that it will be discoverable in anticipated litigation. But he emphasized that the litigation must be probable not merely possible.


In rejecting the contention that the Defendants' deliberately made data inaccessible, the Court notes that, "[e]ven in making this accusation, Plaintiff acknowledge that this ESI has been placed onto 'backup tapes,' , thereby accepting Defendants' own description of the relevant ESI as 'inaccessible.' Dangerously, Plaintiffs have chosen to describe this storage system as adopted 'under the pretext or excuse of a business purpose,' , even though the use of backup tapes for non-active ESI has become standard business practice." Bridgepoint Educ., Inc., 305 F.R.D. at 241. The opinion cites dozens of holdings that ESI stored on backup tapes is inaccessible from a technological standpoint.


The Defendants did restore one backup tape to its native format which contained all of the emails between the relevant employee custodians and their superiors. This gives the Plaintiffs "an unfettered ability to examine almost every potentially relevant quantum of ESI" Id. at 242. The Defendants made a production in TIFF images of other less relevant emails. The Plaintiffs only offered their own attorneys' estimates of the cost of production, while the Defendants filed a declaration prepared by an expert. The Court also noted the Plaintiffs' failure to specify the exact data they were requesting. "If a party fails to identify

the form or forms in which it wishes ESI to be produced and any particular fields or types of metadata sought, the non-requesting party may rightly provide the ESI sought in the form in which it is regularly maintained. With Plaintiffs' request ambiguous as to form and format, Defendants were certainly reasonable in refusing to provide reasonably inaccessible ESI." Id. at 243. Judge Gallo rejected the claim of intentional spoliation because the Plaintiffs did not explain why the Defendants' storage process was unusual.


The Court also rejected that Plaintiffs' request for the production of emails from active storage in native format. It regarded a TIFF image production as a proper response to a "generic request for original documents". Id. at 245.

Note that while Microsoft no longer supports Internet Explorer, there is an Internet Explorer mode available in the Edge browser.


Various legacy applications are still progammed only to function in IE, but the latest Windows systems may not allow IE to run.


Under the options for the default browser in Settings, Edge will let you toggle to a mode that will use the old browser




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Running searches in Outlook is not necessarily a straightforward affair. You can use standard Boolean operators when running a search:


A search for: law firm will return any messages which include both terms.

A search for: law, firm will return any messages which include either term.

A search for: law OR firm will return any messages which include either term.

A search for: law AND firm will return any messages which include both terms.

A search for: “law firm” will return any messages which include this phrase.


See confirmation on this here. Note that when you run a search for “law, firm” in the standard Find tool accessed in the Inbox, it will be run as an ‘AND’ Boolean search, law AND firm, BUT a search for “law, firm” in Advanced Find acts as an ‘OR’ Boolean search, breach OR report.


Entering a search term in Outlook without an asterisk, will run a wildcard search for the term (or string). So a search for: law will return messages which include the terms, ‘lawful’; ‘lawyer', etc.


If you search in the find tool at the top right of the Inbox, Outlook will, with the default setting to search the current mailbox, search through the text of all attachments to email messages. However, the default setting in Outlook will limit the results to 250 messages. You can remove this limit, in Outlook 2019, by going to File . . . Options . .. Search, and unchecking the ‘Improve search speed by limiting the number of results shown’ box.



This only increases the search result limit to about 1000. [The limit appears to be 1050 – based on my tests when a search is run for very common terms in a full Inbox such as “conflict check” or “district court", only 1050 messages appear in the results. I can’t find confirmation of this on Microsoft site. ] It’s possible that a change to registry key would remove the limit altogether. See: https://answers.microsoft.com/en-us/outlook_com/forum/all/critical-outlook-search-issue/36980334-1a74-4db8-b989-39ea12b693c8


In order get complete search results, you need to switch the setting from ‘Current Mailbox’ to ‘All Outlook Items’


[To be clear, if the ‘Improve search speed by limiting the number of results shown’ box is checked, it won’t matter if you have ‘All Outlook Items’ selected, the result limit will still be 250.]


After the search is run, you will still need to click the option to pull up more results at the bottom of the screen.



When searching in Outlook, there's also the option of using the Advanced Find tool. Click in the search box at the top right of the screen and a new ‘Search’ tab will appear. Select ‘Advanced Find’ from the Search tools menu.



Advanced Find does not have the same search results limitation. However even if the search is set to be run in “subject field and message body”, or “frequently used text fields”, the search will not include the text of attachments to email messages. So far as I know, Advanced Find does not give you a way to search the text of attachments.


It would be possible to run a search in Advanced Find for references to a term or terms that occur in the email body or subject field, and then run a search using the standard find tool which was only focused on the text of attachments. On the Search tab, from the + More menu, select ‘Attachment Contains’



If the search term you’re looking for appears in the text of an attachment to no more than 1,000 messages, you should get everything you’re targeting by combining the results from Advanced Find and the standard search tool.




Also note that when a running a search in the standard Find tool, it may take some time to complete even after you have clicked the option to show More results. Look for this notification at the bottom of the screen:






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