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Gregg Mayer is a journalist and lawyer with a keen interest in the rapidly evolving world of e-Discovery. Gregg has published numerous articles, including writing for law journals and the American Bar Association. Gregg served as editor-in-chief of the Mississippi Law Journal. Before practicing law, Gregg worked as a newspaper reporter for six years.
If Relevance Of ESI On Backup Tapes Is Unclear, Court May Adopt Phased Restoration
Posted by Gregg Mayer on Tuesday, March 25th, 2008
Companies that have archived electronically stored information (“ESI”) on backup tapes may face the costly consequence of having to restore those tapes if needed for litigation.
Generally, under the Federal Rules of Civil Procedure, ESI that is not “reasonably accessible” does not have to be restored and disclosed unless the other side can show good cause.
A problem emerges when it is unclear exactly what ESI is stored on the backup tapes. Neither side wants to pay for a full restoration only to discover the email on the backup tapes has no bearing on the litigation. On the flip side, if there is relevant ESI and it should be disclosed, then the court will want those backup tapes restored.
One solution courts have implemented is a phased restoration of certain tapes. This happened in AAB Joint Venture v. United States last year.
In this case, involving a contractor suing the Government, the contractor wanted the Government to restore email from backup tapes that were believed to be relevant to the litigation. During the course of the legal discovery, it was unclear whether the government improperly allowed some email to be deleted that should have been preserved.
The Government acknowledged some relevant email may be on the backup tapes. However, the Government complained the restoration was too costly compared to the benefits of any email retrieved.
The court was faced with two questions: (1) should the tapes be restored? and (2) who pays for it if they should?
In the end, the court decided a sample of the backup tapes – picked out by the contractor – should be restored. If those tapes proved relevant, they could restore more.
A phased approach will allow the Court to engage in a more meaningful benefit-burden analysis before determining whether to require cost-shifting or cost-sharing…The Court believes that restoration of one-fourth of the total back-up tapes is warranted.
The Government had to pay for the initial restoration. Once those tapes were restored, the parties could argue if more tapes were necessary and whether the Government would have to pay for more restoration, or if the contractor would have to split the costs.
Posted in: Reasonably Accessible Information
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