Tossing the tape? Implications of making the switch to disk-based backups.

• Author: Gosalia, Veeral

Backup data on tape has usually been deemed inaccessible for e-discovery, with courts ruling that it would be overly burdensome to retrieve. Now that organizations are increasingly using disks, the question of whether backup data remains inaccessible is worth examination

In the last few years, production of electronically stored information (ESI) for business and other purposes has increased exponentially. As the amount of information that organizations maintain grows, so do the costs and risks associated with effectively managing that data.

Organizations are increasingly moving away from tape and toward disk-based formats as their primary means of backup. While disk options are more scalable, have better indexing, and offer virtual management, they do introduce e-discovery implications that are not of concern with tape backups.

Records and information management (RIM) professionals should therefore know that when transitioning from tape to disk, more areas may be called into interest for litigation and investigations.

Case Law

In the last decade, judges have ruled that the amount of work involved in restoring tape backups is overly burdensome, and therefore data on them is considered reasonably inaccessible for e-discovery purposes.

One of the most widely noted and earliest rulings on this matter was Laura Zubulake v. UBS Warburg, presided by U.S. District Judge Shira Scheindlin from the Southern District of New York. Zubulake centered on a sexual harassment suit filed by a former employee. The employee claimed that to prove her case, she needed e-mails from UBS Warburg that had been stored on tape and later written over by backups.

This issue brought forth case law about the duty to preserve, with exceptions made for data that is retained as part of a backup. This ruling has led to widespread interpretation that if data must be retrieved from backups, the burden of cost must shift to the requesting party.

A ruling in Kilpatrick v. Breg, Inc. in 2009 said that backup tapes can be subject to discovery despite being identified as not reasonably accessible. In this matter, the defendant claimed that its tapes could not be produced for the purpose of finding electronic documents of relevance because they were for disaster recovery only. Ultimately, the judge ruled the tapes could be produced to the court, but at the plaintiffs effort and expense.

This issue came up again in Johnson v. Neiman in 2010, wherein the court ruled with the defendant that electronically stored information residing on backup tapes was not reasonably accessible. The court provided a protective order on the tapes and stated "'reasonably accessible' is best defined as whether the electronically stored information is kept in an accessible or inaccessible format (a distinction that corresponds closely to the expense of production)."

The Federal Rules of Civil Procedure (FRCP) provide further guidance on the matter of backup tapes. Rule 26(b)(2)(B) supports the court actions:

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...