There has been a great deal of discussion about backup tapes since January 15, 2010 when Judge Scheindlin published her order in Committee of the Univ. of Montreal Pension Plan, et al., v. Banc of America Securities, LLC, et al. (“Pension Committee”) which she titled "Zubulake Revisited: Six Years Later".  The argument in blogs, list servers, and discussion groups relates to the discoverability of backup tapes and how long they should be preserved.    One argument states that backup tapes should be kept as long as the longest retention of a record stored on the tape…  Hmmm - how would you know???  Other arguments stay "It's well documented in FRCP…"

What is the right answer?  Well - it depends..

The updated Federal Rules of Civil Procedure (FRCP) actually do not mention backup tapes at all.  The rules refer to ESI considered not reasonably accessible but are not so prescriptive as to provide direct guidance on a specific technology / media such as backup tapes.   Rule 26(b)(2)(B) states  "A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. "

The entire discussion on not readily accessible is an interesting one for a later date but suffice it to say that backup tapes for one organization may be considered not readily accessible while the same tapes for another organization fail the test and are considered accessible.

The Zubulake V ruling in July 2004 provided good guidance on backup tapes where Judge Scheindlin wrote "preserve backup tape when they are the sole source of relevant information …,if the relevant information maintained by those players is not obtainable from readily accessible sources". 

In Pension Committee she wrote a foot note on page 43 stating "A cautionary note with respect to backup tapes is warranted.  I am not requiring that all backup tapes must be preserved.  Rather, if such tapes are the sole source of relevant information (e.g., the active files of key players are no longer available), then such backup tapes should be segregated and preserved.  When accessible data satisfies the requirement to search for and produce relevant information, thee is no need to save or search backup tapes."

So how is the Discovery Response Team to proceed?  Well - it depends…  Obviously in concert with counsel but a key question to ask "is there any potentially relevant information that would only be available on those tapes?"  This first requires an understanding of the several aspects of the operational practices of the IT organization such as rotation schedules for the backup tapes, archiving schedules,  and the standard practice for departing employees ESI.  Secondly, identifying those who potentially have relevant knowledge of the matter and determining if all their content is available in readily accessible sources.   If they have left and were not subject to a litigation hold, it is likely their content was removed then the backup tapes may need to be held.  But…..  What if the rotation cycle for the tapes was measured in days vs years.   And the questions continue…  What is the moral of this story??  For accurate and timely response to events, the Discovery Response Team must have access to a properly maintained ESI Data Map.   In the next issue we will get into the data map..  What it is, and what it isn't...