Case 1:20-mc-00036-JEB-ZMF Document 22 Filed 09/22/21 Page 15 of 32 It is true that Facebook alone retains offline access to the deleted content. However, any “archive of [deleted] messages that [Facebook] continues to maintain . . . constitutes the only available record of these communications, and cannot possibly serve as a ‘backup’ copy of communications stored elsewhere.” Flagg v. City of Detroit, 252 F.R.D. 346, 363 (E.D. Mich. 2008). c. Analogy To Undeleted Content Nearly all “backup storage” litigation relates to delivered, undeleted content. That case law informs and supports the Court’s decision here. “Although there is no binding circuit precedent, it appears that a clear majority of courts have held that emails opened by the intended recipient (but kept on a web-based server like Gmail) do not meet the [backup protection] definition of ‘electronic storage.’” Sartori v. Schrodt, 424 F. Supp. 3d 1121, 1132 (N.D. Fla. 2019) (collecting cases). The Department of Justice adopted this view, finding that backup protection “does not include post-transmission storage of communications.” U.S. Dep’t of Just., Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, 123 (2009), https://www.justice.gov/sites/default/files/criminal-ccips/legacy/2015/01/14/ssmanual2009.pdf. The Gambia argues for following the majority view’s limited definition of backup storage. See Sartori, 424 F. Supp. 3d at 1132; ECF No. 16 (Pet’r’s Resp. to Surreply) at 5–6. If undeleted content retained by the user is not in backup storage, it would defy logic for deleted content to which the user has no access to be in backup storage. Facebook argues for the opposite reading of backup storage, relying on a Ninth and Fourth Circuit case that delivered, undeleted content is in backup storage. See Theofel, 359 F.3d at1070 (9th Cir. 2004); Hately, 917 F.3d at 785. However, as discussed below, the language of Theofel 15