As a reader of this blog may understand, there is not a lot of guidance on whether back up tapes should be preserved when implementing a Legal Hold. It is important to note that the Federal Rules of Civil Procedure are silent on whether back up tapes need to be preserved. What we know, however, is that all relevant ESI must be preserved. Relevant ESI can be contained on back up tapes that a party may deem as not reasonably accessible. Assuming that back up tapes were preserved and identified as not reasonably accessible on the basis that they are for disaster recovery purposes only, will the tapes ever be subject to discovery? In short, the answer is yes as demonstrated by Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009).
In Kilpatrick the court did not address the question of preservation directly, but the case stands as a warning. Here defendant repeatedly represented that additional relevant ESI might be contained on back up tapes, that are not reasonably accessible because the tapes are maintained for disaster recovery purposes only. Defendant also represented that active sources should contain sufficient relevant ESI. Nevertheless, plaintiff moved to compel production of the back up tapes. The court agreed with plaintiff that the ESI produced from active sources seemed to demonstrate that some ESI may be missing.
Seeking to balance the potential relevance of the discovery with the burden and cost of production to the defendant, the court concluded that plaintiff “may, but is not required to, hire an outside vendor for the purposes of confirming the completeness of [defendant’s] production, at its own expense” and subject to the following conditions established by the court:
1. Plaintiff's search may encompass, at most, five of Breg's back-up tapes. Plaintiff shall provide Breg with a single list of those tapes that it wishes to search, to avoid unnecessarily burdening Breg with the responsibility to make multiple trips to its off-site storage facility.
2. Breg must be provided with the results of the search no later than June 26, 2009; and, Breg must review those documents and deliver all discoverable materials to Plaintiff's counsel no later than July 1, 2009.
3. The search shall encompass the email archives of the seven Breg employees identified by the parties as having participated in potentially relevant communications.
4. The search shall be constrained to prevent interfering with Breg's preparation for trial; and, therefore, the search shall include a limited number of search terms, including the word "chondrolysis." [Footnote omitted.]
5. The documents resulting from the search shall be segregated based on whether the document resulted from a search of the word "chondrolysis," as opposed to another keyword.
6. Because the backup tapes contain confidential data and are preserved by Breg for disaster recovery purposes, the search shall be subject to the terms of a confidentiality agreement; and, the tapes shall be returned to Breg in the same condition that they were received.
Here the back up tapes appear to have been preserved and plaintiff was free to conduct a very limited search at its own expense. From a legal hold perspective, what would have happened if the disaster recovery tapes were not preserved? We can only speculate, but the result may not have been good.
To read more about the discovery of back up tapes as ordered in Kilpatrick and to obtain a copy of the decision, click here: http://tiny.cc/zL4Se.