Someone wise once jokingly advised me, “if you want to securely destroy data, back it up onto tape”. Having restored (or attempted to restore) a fair sampling of (potentially corrupt) tapes, I say this is not far from truth. From a technical standpoint, this is especially the case when absolutely no information can be gleaned from the client on what (deprecated) OS, what (legacy) software (or worse, combination of software) and which (ancient) tape drive. Indeed, tape restoration can be very much forensic alchemy! That is why it costs so much and can take so long. But, from a legal standpoint, does technically difficult-to-restore imply “off-the-hook”? Well, as your attorney will respond, it depends.
The freshly amended Federal Rules of Civil Procedure treat this issue in Rule 26(b)(2) [1]. It reads…
(2) Limitations.(A) By order, the court may alter the limits in these rules on the number of depositions and interrogatories or the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36.
(B) 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.
(C) The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any local rule shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under Rule 26(c).
Ronni Abramson has a great article in Legal Tech discussing two recent rulings: Best Buy Stores L.P. v. Developers Diversified Realty Corp. and Ameriwood Industries Inc. v. Liberman [2]. Here are the bullets:
Best Buy Stores L.P. v. Developers Diversified Realty (DDR) Corp.
- Best Buy alleges overcharges for insurance and maintenance, seeks documentation on how insurance charges were calculated
- DDR fails to respond and thus waives objections
- Best Buy files motion to compel
- DDR argues in brief that processing would exceed $125,000 and to hold determination until all issues have been sorted out, offers no proof to support argument that tapes were not reasonably accessible
- Magistrate Judge Jeanne Graham states "the Defendants offer no proof, aside from conclusory statements, about the cost to obtain documents from electronic archives. So this concern cannot shield the defendants from discovery here." Orders responsive docs in 28 days.
- DDR files objection with U.S. District Court Judge David Doty requesting rolling productions
- submits unsworn statement from Kroll Ontrack advising 102-122 days to restore all tapes,
- submits affidavit by directory of technology one day late (because of illness) with number of tapes, 345, that tapes were used solely for disaster recovery, and that an outside vendor would be required,
- submits cost estimates from Kroll for restoration, filtering and processing (before review) – between $288,300 and $468,100 (~$1,000 per tape).
- Doty unconvinced, upholds production order and timeline
- DDR files motion for reconsideration.
- Graham denies arguments that DDR was not aware of costs or delays and could not have presented evidence to support objections earlier.
Ameriwood Industries Inc. v. Liberman
- Ameriwood alleges that Liberman, while employed, used confidential information to sabotage business relationships.
- Liberman claims that lost sales were due to Ameriwood mismanagement, requests production of documents to show mismanagement.
- Ameriwood produces some documents, objects that requests are “overly broad and unduly burdensome”
- Liberman motions to compel, requests all responsive documents within a date range
- Ameriwood argues that request would result in reviewing hundreds of thousands of documents, submits affidavit from forensics firm detailing that
- the firm had collected responsive emails sent within the daterange for 23 former and current employees into a database
- calculated that the emails within the database numbered in the hundreds of thousands
- calculated that the emails for the six employees identified by Liberman would result in 60,000 emails and attachments
- Judge rules that requested information is not reasonably accessible (because of review volume, not necessarily technical concerns), also that Liberman did not have a sufficiently narrow request.
The eDiscovery theme here is crystal clear: know what you have, know what it’ll cost, and for goodness sake, buy and submit the affidavit. These rulings suggest (and set precedence) that the law will not be kind to ignorance or procrastination.
On a different, and slightly skeptical note, consider the following: revenue for Best Buy FY2007 (ending 5/07) was $37B, revenue for DDR FY2006 (ending 12/06) was $0.8B. Big guys are up 2-0. Hmmm.
References
1. Federal Rules of Civil Procedure. 2006 [cited 2007 May 10]; Available from: http://www.law.cornell.edu/rules/frcp/.
2. Abramson, R. Judges Rule on Hard-to-Discover Data. Legal Technology 2007 May 10 [cited 2007 May 11]; Available from: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1178701485189.
