The Law Catching up With Technology: Are Backup Tapes Inaccessible?

The position of both courts and counsel has long been that archival media – backup tapes – are generally inaccessible. Federal Rule of Civil Procedure (Fed. R. Civ. P.) 26(b)(2)(B) states that parties do not need to provide discovery of ESI if it exists on sources that are “identified as not reasonably accessible because of undue burden or cost”.

State and Federal positions do not account for two important concepts underlying the deployment of such technology. The first concept draws from the precept that companies utilizing backup tapes elected to use such technologies based on a business decision to invest in the backup technologies. This company likely possesses the necessary skills in-house to obtain the data sought in a manner that is much more cost effective and efficient than a third-party. The second concept is the maturation of the underlying technology such that tools exist today that enable the discovery of the data in a more efficient and inexpensive manner.

In Johnson v. Neiman, 2010 U.S. Dist. LEXIS 110496 (E.D. Mo. Oct. 18, 2010), a recent case in the Eastern District of Missouri, plaintiff pro se requested data from defendant that the defendant alleged was located on 5,880 backup tapes. Defendant asserted that the restoration of the data would take nearly 14,700 man-hours to restore, and that the creation of Outlook PST files for each e-mail account on the backup tapes would take about 1,222 man-hours. Id. In total, defendant estimated that restoring the backup tapes would cost over $1.2 million. Id. Note that this cost does not include the cost of indexing the tapes nor reviewing the data. The court used the seven-factor “Good Cause” test found in the advisory committee’s notes to Fed. R. Civ. P. 26(b)(2) to conclude that a “slim likelihood that new and relevant information may be discovered does not outweigh the substantial burden and expense required to retrieve the information from the backup tapes.”

Until recently significant steps were required to restore the data from the backup tapes, such as creating an inventory of the backup tapes, profiling the contents, determining the original backup software used, identifying what email software was used by the company at the time the tape was created, and computing the amount of storage required per tape. After this laborious process, the data stored on the tapes were restored and placed online, at which point the restored could be indexed. At the conclusion of the indexing, the discovery process could begin. This old process can cost millions of dollars and take many months.

However, now backup tapes can be indexed without requiring the copying or moving of the data off the tape. Litigants can reduce the amount of data required to be restored off the tapes, saving anywhere from twenty to fifty percent of the time and much of the cost. This savings enables litigants and the courts to perform keyword searches and document review with greater precision and restore only those files that are relevant or responsive.

** This is an abridged version of the article “Technology Running Ahead of the Law: Tape and EDiscovery,” written by Daniel Garrie and published in the Los Angeles Daily Journal. To request a PDF of the complete article, please contact FSRDG.