The Backup Plan

by Adam Cohen

No longer exclusively the domain of IT departments, backup tapes - containing digital records of employees' computer files - are an enduring form of discoverable electronically stored information (ESI).

Backup tapes are a safeguard against system failures. But typically, the tapes aren't readily searchable. When they become relevant to litigation, attorneys must sift through their content, at great expense to the litigants. Therefore, lawyers try to avoid producing material from backup tapes by designating them as "not reasonably accessible" under the federal rules, or as a cost that outweighs the benefit under California rules. (See F. R. Civ. P. Rule 26(b)(2)(B); Cal. Code Civ. Proc. § 2031.060(d).)

The tapes often are part of an ongoing rotation in which they are overwritten and reused. Saving the tapes can become costly and impractical, and yet it's not always clear when they must be preserved for legal purposes. Despite many decisions addressing the duty to preserve backup tapes - most recently in Pension Committee (Pension Comm. v. Banc of America Sec., LLC, 685 F. Supp. 2d 456 (S.D.N.Y. 2010)) - best practices for doing so remain unsettled.

The importance of backup tapes became clear in Zubulake v. UBS Warburg LLC (220 F.R.D. 212 (S.D.N.Y 2003)), when key witnesses deleted incriminating emails that were later recovered from backup tapes. That decision also provided guidance on duty-to-preserve standards for backup tapes.

While a party generally "need not preserve all backup tapes even when it reasonably anticipates litigation," the Zubulake IV court wrote, it must maintain "unique, relevant evidence that might be useful to an adversary" (220 F.R.D. at 217). The court also held that it was not necessary to retain "inaccessible" tapes, with certain exceptions (for example, if the contents are unavailable elsewhere).

Nonetheless, judges nationwide have taken vastly different approaches to backup tapes. The decision in Oxford House, Inc. v. City of Topeka (2007 WL 1246200 (D. Kan.)), for example, suggests there is never a duty to preserve them. The defendant deleted relevant emails prior to litigation, and claimed that they were not recoverable from the backup tapes. The court denied the plaintiff's motion to compel production, and quoting Zubulake noted that a litigation hold "does not apply to inaccessible back-up tapes" (2007 WL 1246200 at *4).

Conversely, in the defamation case Treppel v. Biovail Corporation (249 F.R.D. 111 (S.D.N.Y 2008)), the court suggested that litigants must always retain backup tapes. The Treppel court held that Biovail did not begin saving daily backup tapes until months after the duty to preserve arose, and that additional tapes capturing monthly data were routinely purged. The court, noting the Zubulake IV ruling that preserving "multiple identical copies" of backup tapes is unnecessary, still deemed Biovail's efforts "clearly deficient" (249 F.R.D. at 118?119). In discussing whether a sanction was appropriate, the Treppel court quoted a 2007 district court opinion: "[A]ny backup tapes containing the documents of a key player must be preserved and accessible" (249 F.R.D. at 120).

More recently, the amended opinion in Pension Committee held that a litigant who fails to preserve backup tapes relating to key players is grossly negligent if the relevant information is "not obtainable from readily accessible sources" (685 F. Supp. 2d at 471). In the common situation where unique data - however small in volume - may exist on backup tapes associated with a key player, Pension Committee suggests that those tapes should be preserved.

Pension Committee injects the accessibility standard into the preservation discussion, and how these issues intersect remains unclear. One literal interpretation is that backup tapes associated with key players should always be maintained when other sources are not accessible, even when the contents are duplicative.

Ultimately, backup tape retention policies should contemplate the consequences for litigation. Backup tapes might be kept only for as long as they are needed - perhaps as temporarily as one week. And companies should also consider an alternative method for archiving data.

As the e-discovery landscape shifts, managing backup tapes proactively is the most economical response to the demands of litigation.

Adam Cohen, a former litigation partner with Weil, Gotshal & Manges, is a senior managing director with FTI Consulting. He teaches e-discovery at Rutgers and Fordham.

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