In ongoing e-discovery dispute, a U.S. Magistrate Judge sitting in the District of Columbia looked to the version of Rule 26(b)(2)(c)(iii) which will become effective December 1, 2007, to help analyze a defendant’s responsibility to search for accessible e-mails, in determining whether “the burden or expense of the proposed discovery outweighs its likely benefit, considering [1] the needs of the case, [2] the amount in controversy, [3] the parties’ resources, [4] the importance of the issues at stake in the action, and [5] the importance of the discovery in resolving the issues.”  The question before the court, at this point, was whether was time to appoint a forensic analyst who could search the network server and individual hard drives to see if any additional information can be retrieved; (and, of course, who should pay for such a forensic examination). As to the time period commencing after defendant was placed on notice, the court held that “it is a legitimate exercise of discretion to require Faber to participate in a process to ascertain whether a forensic examination can yield emails that were deleted after February 6, 2004, because at that time Faber could reasonably anticipate that Peskoff would sue him” and noted that “Faber’s not turning the automatic deletion feature off once informed of pending litigation may serve as a premise for additional judicial action, including a sanction, without offending amended Rule 37(f).” As to the time period preceding notice or anticipation of litigation, the court stated as follows: “Since I persist in my view that a party must search available electronic systems to answer any discovery request not objected to, and since Faber has never argued that the search is unnecessary or irrelevant but only that Peskoff should pay for it, I am hard pressed to understand why I am required to, sua sponte, balance utility against cost and relieve Faber of searching accessible, relevant data any more than I would have to do the same balancing before I required him to look through the file cabinet outside his office for a paper file.”  Or: “In other words, I readily concede that when the argument is made, the search for data, even if accessible, must be justified under the relevancy standard of Rule 26(b)(1). By performing the analysis under Rule 26(b)(2)(C), which assumes the relevancy standard under Rule 26(b)(1) is met, I do not mean to suggest the contrary. The point is that that balancing under Rule 26(b)(2)(C) was not invoked here to oppose the search, and I cannot accept the proposition that Faber may be relieved of searching accessible data when he does not argue that the search is not justified by the potential relevancy of what may be found.” Therefore, the court ordered the parties to collaborate on an RFP from qualified forensic computer technicians to conduct a search, and then “inquire what it will cost to convert the found emails into another readable format such as TIFF or PDF. Then, with that information and the bids received, the Court will permit the parties to brief whether any of the proposals received should be accepted and, if so, who shall bear the cost of doing the search.” See Peskoff v. Faber, No.04-526, 2007 WL 2416119 (D.D.C. Aug. 27, 2007). [See also: 2007 WL 530096 (D.D.C. Feb. 21, 2007).]