In Lord Abbett Mun. Income Fund., Inc v. Asami, No. C-12-03694 DMR (N.D. Cal. Oct. 29, 2014), United State Magistrate Judge Donna M. Ryu granted the plaintiff’s motion for permission to no longer preserve computer workstations that were peripheral to discovery.  The court extended and applied Rule 26(b) proportionality to the issue of ESI preservation, and gave dispositive weight to the plaintiff's sample-based review of the contents of the devices.

The plaintiff had initially preserved a set of 159 computers used at its business location, but subsequently confirmed that these devices were not used by any relevant custodians.  Further, the plaintiff’s vendor reviewed a sample of these computers to confirm the irrelevancy of their contents.  On the other hand, the defendants ignored “numerous opportunities [before the close of discovery] to test their belief that the computers may have evidentiary value,” and instead based their argument simply on speculation as to what these computers might contain.  Recognizing that “the proportionality principle applies to the duty to preserve,” the court held that where there was “absolutely no showing that [the devices] contain relevant evidence,” the burden of paying $500 per month for preservation outweighed any potential benefit; accordingly, the plaintiff could dispose of the computers.