Do the New Rules Discourage IT Improvements?

June 23, 2007

ibmcomputer.jpgDo the new Federal Rules of Civil Procedure (“FRCP”) reward the continued use of outdated computer systems where information is hard to find and retrieve?  Overall, no.  But surprisingly one of the new rules does reward inefficient IT, and it is an important rule at that:  Rule 26(b)(2)(B).  Although it is not the intended purpose of the rule, there is no getting around the fact that 26(b)(2)(B) is a disincentive to IT upgrades designed to improve accessibility to stored information. It does so by providing special protection from discovery to hard-to-access computer data, protection not afforded to any other type of digital evidence.

Fortunately for hardware and software vendors the impact of this one “pro-Luddite” rule is outweighed by the terms of the other new rules, primarily Rules 16(b) and 26(f).  They require a party in federal litigation to very quickly identify, preserve, search, and produce relevant computer data.  The new FRCP timelines established by these rules cannot be met by businesses unable to quickly access the high volumes of electronic records stored on their computer systems.  For that reason, the overall impact of FRCP, despite Rule 26(b)(2)(B), supports the upgrade and migration of IT systems to improve information accessibility.  A company in litigation today must be able to quickly and efficiently locate and retrieve information relevant to the dispute. It is foolish to continue to use outdated technology where that is often difficult, if not impossible.  In fact, that can often make the difference between winning and losing a lawsuit.  That is why many companies are now moving away from unsearchable backup tapes, to new searchable tape systems, archiving, live mirroring, or other solutions.  That is also why they are investing in software to more efficiently search and preserve information, especially emails.

Rule 26(b)(2)(B) FRCP goes against this trend and provides some small comfort to procrastinators who put off these needed upgrades.  This rule actually encourages inefficient IT because it places hard-to-find computer data off limits from discovery, absent a special showing of good cause not required for all other computer evidence.  In other words, if you store computer data so that it is hard to access, then, as a general rule, when you are sued, this information is, to a large extent, exempt from discovery. Unlike other relevant computer information that is stored efficiently, so that it can be reasonably accessed, if information is very difficult to access, then you do not have to access it at all. You do not even have to search it to see if it contains relevant evidence, and so, of course, you also do not have to produce it. You just have to disclose that it exists, and explain why it is hard to get to. Then it is up to the requesting party to try to persuade the court that special circumstances exist to justify the burden and expense of discovery.  This is a so-called “two-tiered” system of discovery, with “not reasonably accessible” data requiring a second-tier of good cause proof to be discoverable.

Here is the full text of Rule 26(b)(2)(B):

(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. (emphasis added)

Information considered by the law to be “not reasonably accessible” and thus protected from ordinary discovery by this rule includes backup tapes, “legacy data,” and “double deleted” files.  By “legacy data”, I mean information stored on hardware or requiring software that is no longer used or easily available. By “double deleted” files, I mean files no longer listed in FAT, but still located on a hard drive or other storage device because they have not been written over yet by new information. (For more on what I mean by “double deleted” as opposed to single deleted, see the Blog entry of June 2, 2007.)

The “pro-Luddite” aspect of FRCP inherent in 26(b)(2)(B) seems to have escaped the notice of most IT commentators and vendors, especially those in the information storage and retrieval field.  They promote the idea that compliance with FRCP requires companies to upgrade their IT systems.  They affirm that FRCP now mandates businesses to make all of their computer data reasonably accessible, especially their email, which is the primary focus of discovery in most lawsuits.  To read all of the hype in this area, you would think that the new FRCP contains provisions requiring specific technology improvements, such as archiving of email. 

They do not, and in fact, as you can see by the terms of Rule 26(b)(2)(B),  this rule protects old, inefficient systems.   It serves to put information that is not reasonably accessible – that is, information stored in a manner that is burdensome or expensive to retrieve – outside the scope of normal discovery.  Therefore, in that way, Rule 26(b)(2)(B) rewards a company that maintains its data inefficiently by excluding that data from discovery.  The company is saved from the expense of preserving or searching for that kind of data.  To put it simplistically, you do not have to produce what you can’t easily find. So, why make anything easy to find? If you do, you just make it discoverable. Following this argument, the best strategy to avoid the high expense of e-discovery is to store your company’s business information in sources that are not reasonably accessible.  This is what I call a Luddite strategy of “deliberate inaccessibility”.  

Although I do not agree with this strategy for reasons I will explain below, I recognize that the argument does have some merit. I think this aspect of FRCP should be openly discussed, and not just swept under the rug.  In fact, this language in 26(b)(2)(B) is, in my view, and others, one of the most significant weaknesses in the new rules, and will cause problems for years to come. See Garrie, Armstrong & Burdett, Hiding the Inaccessible Truth: Amending the Federal Rules to Accommodate Electronic Discovery, 25 Rev. Litig. 115, 2006.  As Garrie, Armstrong & Burdett point out in another law review article on Sarbanes-Oxley and e-discovery, the Zubulake decisions have the same technology-chilling effect in so far as they place a special burden of cost-sharing on a party seeking discovery of inaccessible data, including legacy data and backup tapes.  

Zubulake thus creates a perverse disincentive that prevents companies from investing in more efficient data storage technologies, because parties with efficient storage systems are generally forced to produce more digital documents than parties using legacy storage systems. Although companies eventually may determine that the need for a newer storage system exceeds the risks posed by broad electronic discovery, litigants should not be forced to weigh potential adverse legal consequences against the benefits that could be realized by investing in appropriate systems for their business needs. (footnotes omitted)

Electronic Discovery and the Challenge Posed by the Sarbanes-Oxley Act, Garrie & Armstrong, Electronic Discovery and the Challenge Posed by the Sarbanes-Oxley Act, 2005 UCLA J.L. & Tech. 2, Para 13.

Other commentators acknowledge the problem, but then dismiss it too easily by stating that courts will see through any fraudulent schemes to hide evidence in inaccessible systems. This argument assumes fraudulent intent.  For authority these commentators usually cite the Rambus saga of cases.   Rambus, Inc. v. Infineon Tech. AG, 220 F.R.D. 264, 284 (E.D. Va. 2004); Rambus, Inc. v. Infineon Techs. AG, 155 F.Supp.2d 668, 680-83 (E.D.Va.2001); Rambus, Inc. v. Infineon Techs. AG, 222 F.R.D. 280, 286 (E.D.Va.2004); Samsung Electronics Co., Ltd. v. Rambus, Inc., 439 F.Supp.2d 524 (E.D.Va., July 18, 2006). These cases expose the deliberate actions by Rambus to change its record retention policies and physically destroy evidence in anticipation of bringing patent litigation. (See my Blog of March 3rd, 2007 for further discussion of this interesting case and the employee “shred days.”)  

This kind of facile response – “don’t worry about 262(b)(2)(B) because the courts will pick up on any fraud” – begs the question.  Obviously if a company moves all of the data it does not want found into a legacy system before filing suit, instead of just destroying it as in Rambus, then this is a fraudulent scheme and will likely be exposed.  But this does not address the more realistic scenario of a company that simply continues the status quo of maintaining old systems with unreasonably accessible data.  It does not address the non-fraudulent scheme.  The strategy of “deliberate inaccessibility” is not necessarily fraudulent. In most cases it will more likely be driven by procrastination and short-sighted thinking.

Again, to reiterate, I do not think a company should follow this kind of strategy of inertia.  A company should not put off upgrades to their IT systems to make more information accessible, just because this might take the information out of the protection of Rule 26(b)(2)(B). The strategy of inaction is too risky. Businesses should improve their IT systems, especially email, and move away from old technologies that are hard to search.  Everyone, especially businesses involved in frequent litigation, should move towards making their information retrieval more efficient and reliable.  I think they should do so both for business purposes, and for litigation readiness purposes. But it is not a simple black and white matter of compliance with FRCP as some contend. The reality is, FRCP is a mixed bag, and companies should act now to improve information accessibility primarily for business and records management efficiency reasons, and only secondarily because of litigation.

Even from the litigation perspective alone, a full risk analysis counsels in favor of technology improvement, not status quo.  Attempts to rely on 26(b)(2)(B) to protect data from discovery by using obsolete storage, such as tapes and legacy systems, are too risky.  The risk is unacceptable because the exemption of inaccessible data from discovery is in turn subject to a second-tier “good cause” exception.  The vague “good cause” exception allowing discovery is not defined by the rules.  Under this second-tier analysis a court can require the production of even inaccessible records, regardless of how much burden and expense this may cause.  This is an unacceptable risk because the expenses in a situation like that can be enormous.  Costs of  three million dollars in just five months are not that unusual.  See Kentucky Speedway, LLC v. NASCAR, 2006 U.S. Dist. LEXIS 92028 (E. D. Ky. Dec. 18, 2006). It is true that a court has discretion to shift some of these costs onto the requesting party, but you cannot count on that.

Good cause for discovery of inaccessible data can be shown in any number of ways, depending in large part on how the governing judge views the case and the discovery sought.  The Rules Committee Commentary specifies some of the factors they think a court should consider in finding “good cause”.  These are suggestions only, and are not binding on any court.  These Commentaries are quoted in full in the Rule 26 Page on the top of the Blog.  Here is my summary of the factors the Committee suggested be considered to decide whether there is good cause to allow discovery of “not reasonably accessible” information:

1. The specificity of the discovery request.

2. The quantity of information available from other, more easily accessed sources.

3. The failure to produce relevant information that seems likely to have existed but is no longer available from more easily accessed sources.

4. The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources.

5. Predictions as to the importance and usefulness of the requested information.

6. The importance of the issues at stake in the litigation.

7. The parties’ resources.

It is a long list, and not exclusive, and everyone knows that it will be one of the most heavily litigated parts of the new FRCP for many years to come.

Since the good cause exception is so general and vague, not to mention hard to predict, it is foolish to keep information in the dark based on the hope that it will, for that reason, never be subject to discovery.   You never know when a court may require you to search in the dark at great expense. 

Also, and even more importantly in my opinion, that is no way to run a business or manage records.  Why keep information if you don’t want it, and can’t use it?  It might all come back to haunt you some day (just ask Morgan Stanley), and in the meantime it costs money to store. The best solution to an archaic computer system is to throw it out, and upgrade.  The best solution to archaic information is to throw it out, period.   If there is no valid business purpose or legal requirement to save records, then destroy them.  Don’t just save information because you have the ability to do so.  That is a natural pack-rat tendency of most IT departments, and the one that annoys lawyers the most.  Of course, don’t act rashly either.  Think long and hard, and be sure that you don’t need the records.  Then take the time to purge and destroy, and do it the right way.  Follow the guidelines of Rule 37, document everything, and so protect against any later spurious charges of spoliation.

District Court in LA Decides Computer RAM Memory Must Be Preserved and Produced

June 20, 2007

RAM Computer Memory ChipsA Los Angeles District Court rocked the e-discovery world last month by holding, for the first time, that the contents of a computer’s Random Access Memory (“RAM”) memory are discoverable. Columbia Pictures Industries v. Bunnell. The Order dated May 29, 2007, by Magistrate Judge Jacqueline Chooljian was entered in a copyright infringement case against the owners of the popular media search-engine web, TorrentSpy. The order has been highly criticized by computer experts and e-discovery lawyers alike for greatly expanding the legal duty to preserve and produce electronic data to the most elusive and transitory of information, that held only in a computer’s RAM chips.

Many contend that this a rogue decision, and if not reversed on appeal could force companies and individuals to store and produce vast amounts of data that would otherwise exist only temporarily on their computer’s RAM hardware.  Ken Withers, director of The Sedona Conference, was quoted by CNET News as stating that he feared the judge’s decision may mean a “tremendous expansion” of the scope of discovery in civil litigation, creating yet another what he calls “weapon of mass discovery.” By this,he means a discovery burden that could be tremendously expensive to meet, and thus could be exploited by plaintiffs and defendants alike to force the settlement of a dispute to avoid that expense.

Commentators all seem to agree that in most circumstances, if not all, it would be prohibitively burdensome for a person or company to try to preserve and produce the transitory contents of computer memory.  The burdensomeness would derive not only from the expense, but also from the disruptive actions required to comply.

Moreover, many contend that an order requiring the production of RAM data necessarily requires a party to create computer records where none before existed.  This goes against a fundamental legal precept that a party is only required to produce documents and electronically stored information that  have already been created and stored.  A party to litigation is never required to generate and create new documents and information so as to satisfy the curiosity of the opposing party.  As Ken Withers stated in the CNET article:

There’s never been a requirement that (defendants) must create documents that they wouldn’t ordinarily maintain for the purpose of satisfying some (plaintiff’s) discovery requests.

Judge Chooljian considered this argument, but rejected it, because in her view, the information already existed in RAM.  She concluded that the defendants were not required to create new data, they were just required to transfer it to permanent form and preserve it.

Withers and others think the order is ill conceived in part because it is based on a misunderstanding of technology and computer memory.   Computer memory RAM files are temporary files that are created by the computer for operational efficiency.  Computer memory like this is by nature information designed only for very temporary storage in the memory chips of a computer.  It is quickly overwritten and is always purged – literally disappears – when a computer is turned off.  (Unpowered RAM memory chips contain no information of any kind.)  The same CNET News article also quotes Dean McCarron, principle analyst at Mercury Research, as saying:

RAM is the working storage of a computer and designed to be impermanent.  Potentially your RAM is being modified up to several billions of times a second. The judge’s order simply reveals to me a lack of technical understanding.

In short, RAM memory is temporary and transitory, and leaves no trace or record.  Still, a computer system can be designed so that information temporarily stored in RAM is copied onto a hard drive or flash memory storage where it then becomes fixed.

Before this decision, most e-discovery attorneys I know thought that only information fixed on a storage device, such as a hard drive, flash memory or Read Only Memory (ROM) (which are permanent), CD, DVD, etc., would be considered “stored” and thus discoverable under the new Rules as “Electronically Stored Information”. See, e.g., Rule 34 and commentary in the Page 34 at the top of the Blog.  This decision broadens the meaning of “stored” to include the temporary holding of information in a volatile memory chip.

The opinion concedes that computer RAM memory has never previously been adjudicated to be Electronically Stored Information (“ESI”) under new Rule 34.  For that reason, Judge Chooljian declined to impose sanctions on defendants for failing to preserve and produce the RAM ESI in the past, but she did order its preservation and production going forward.   Although the opinion concedes it is a case of first impression for construction of Rule 34, Judge Chooljian argues that her conclusion is compelled by the unique circumstances of this case and prior Ninth Circuit law, primarily MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518-519 (9th Cir. 1993).  The MAI Systems case is well known for its holding that the copying of software into RAM memory is equivalent to  “affixing” it in a tangible medium for purposes of copyright law, where “fixed” is a term of art.  Judge Chooljian reasoned that if information in RAM was sufficiently fixed to constitute a copyright infringement, then it was sufficiently fixed for purposes of discoverability as electronically stored information.

In this case, the RAM memory at issue was the information stored for up to six hours, but no longer, on the webserver for the TorrentSpy web, as to what web-pages were downloaded, when, by whom, and other similar information.   That is called a webserver log.  For this particular kind of RAM data, it is not technically difficult to set up a webserver so that the log is transferred from RAM to a permanently stored file on the hard drive. Many webs are set up to do this.  These website owners want to keep track of who visits their site, which pages are the most popular, etc.

But TorrentSpy did not set up their system that way.  They did not want to have any tracking information on their users, and in fact they put this privacy guaranty in their user agreement.  The Plaintiffs in this case, Columbia Pictures Industries, et al., were frustrated by the fact that the defendants did not know who its users were, and in fact did not want to know.  Plaintiffs claimed that TorrentSpy’s users were illegally downloading their copyrighted materials – their movies, music and television shows – based on information they obtained from TorrentSpy’s web. Plaintiffs claimed that TorrentSpy set up their computer systems with RAM anonymity on purpose in order to encourage their users to steal plaintiffs’ copyrighted materials without fear of being caught.

Note that the plaintiffs do not claim that their copyrighted materials are stored on TorrentSpy’s web, and do not claim that TorrentSpy’s users downloaded the files from TorrentSpy. It appears to be undisputed that TorrentSpy “only” provides information as to where these materials are located, usually on the computers of individuals located around the world.  Plaintiffs sued the TorrentSpy web owners, and not the individuals who illegally downloaded the files or the individuals who supplied the files (for free), based on theories of vicarious copyright infringement, contributory infringement, and inducement.

Here, in my view, is where an old legal axiom comes in: “bad facts make bad law.”  The facts in this case are unusual.  The judge was convinced that the webserver logs were essential to the plaintiffs’ case.  This much is certain, and this is a highly unusual situation. Moreover, the tone of the opinion suggests that the judge thinks the plaintiffs are likely to prevail if they obtain these logs, that it will enable them to prove their infringement conspiracy theories.  The plaintiffs have successfully argued that defendants were hiding this crucial evidence in their RAM, and that this was an essential part of their conspiracy to steal their intellectual property.

Further, the defendants were, according to Judge Chooljian, unable to demonstrate that it would be “unduly burdensome” for them to transfer all of the webserver logs on an ongoing basis from RAM to hard drive, and thereafter to preserve and produce this evidence.  The court was referring to the burden of proof placed on a party opposing discovery under new Rule 26(b)(2)(B). Under this rule, ESI is not discoverable if the party opposing discovery can show that it is “not reasonably accessible because of undue burden or cost.” Personally, I am surprised defendants could not prove undue burden or costs.  If they had, then under Rule 26(b)(2)(B) the burden of proof would have shifted to the plaintiffs to provide good cause that the “not reasonably accessible” information be produced anyway.  Apparently defendants failed because the court went entirely with the plaintiffs’ expert, and rejected defendants’ contrary testimony.  This certainly shows the importance of credible experts, especially in a case like this.

Judge Chooljian appears to recognize that her decision would be controversial, and took some pains to note that it was not intended to serve as precedent for the routine discovery of computer memory in other cases.  Her position is explained in footnote 31, at page 31 of the 35-page opinion:

The court emphasizes that its ruling should not be read to require litigants in all cases to preserve and produce electronically stored information that is temporarily stored only in RAM. The court’s decision in this case to require the rentention and production of data which otherwise would be temporarily stored only in RAM, is based in significant part on the nature of this case, the key and potentially dispositive nature of the Server Log Data which would otherwise be unavailable, and defendants’ failure to provide what this court views as credible evidence of undue burden and cost.

I do appreciate this footnote.

POSTSCRIPT: The Magistrate’s discovery ruling was appealed and later approved by the district court judge. See:  Order Denying Defendants’ Motion For Review dated Aug. 24, 2007Columbia Pictures Industries v. Bunnell, 245 F.R.D. 443 (C.D. Cal. 2007). Later, a district court in New York reached the same result in a case where the defendant’s lawyers agreed to produce the ephemeral data, but then later reneged. Arista Records LLC v., Inc., 2009 WL 185992 (S.D.N.Y. Jan. 26, 2009).

SECOND POSTSCRIPT: Interested in the law and digital pirates? See my July 5, 2009 blog post:
Inside the Head of a Digital Pirate.

Should a Litigation Hold Include Backup Tapes?

June 15, 2007

backup tape erasureI think Judge Scheindlin got it right in Zubulake IV when she held that a litigation hold should not, as a general rule, include backup tapes. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003):

The scope of a party’s preservation obligation can be described as follows: Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents.  As a general rule, that litigation hold does not apply to inaccessible backup tapes, for example, typically maintained solely for the purpose of disaster recovery, which may continue to be recycled on the schedule set forth in the company’s policy.  (emphasis added)

Judge Sebelius in Kansas recently agreed with Judge Scheindlin and held that a company is not required to suspend the normal recycling of  its backup tapes as part of a litigation hold.  Oxford House, Inc. v. City of Topeka, Kansas, 2007 WL 1246200 at *4 (D.Ka. April 27, 2007).  Such suspensions as part of a routine litigation hold can be very disruptive and expensive to any large organization with substantial ESI to backup. In most e-discovery cases, the tapes are never needed, and so the cost of routine preservation in every case is simply not justified. Further, disaster recovery type backup tapes are not reliable and decay over time. Even when the tapes are preserved, they are always difficult to recover, data is often lost, and you are never certain that the relevant evidence can be restored.

Admittedly in some rare cases, backup tapes may be the only place relevant ESI is still located by the time an organization receives notice of a suit.  In these circumstances, the imposition of a hold at that time would be the only way to preserve relevant evidence.  If an organization has notice of these unusual facts, then the general rule should probably not apply, and the hold notice should cover backup tapes.  But such circumstances are highly unusual.  Most of the time a defendant at the time of hold does not know whether the tapes will be needed.  In a few unusual cases, it is later discovered that the tapes were needed, and should have been preserved. These few exceptional cases do not justify the disruption caused in the vast majority of cases where the tapes are never needed.  

The general rule of exclusion of backup tapes from a hold is tested in the rare case; the case where it turns out the tapes should have been preserved. Oxford House is just such a case. Here a Topeka City Commissioner was found during discovery to have deleted certain relevant email in June of 2005.  The plaintiff claimed spoliation and sought sanctions.  The court rejected this argument because it found that litigation was not reasonably anticipated until August of 2005, two months after the email deletion.  The destruction of email before a duty to preserve arises cannot constitute spoliation.

That part is fairly cut and dried.  But the plaintiff also argued that the city should have preserved its email backup tapes.  It did not.  Instead, even after the August hold date, the city continued its normal backup tape recycling.  It continued to reuse the same tapes and thus erase the old emails and other information from the previous backups.  The city was on notice of pending litigation at the time it continued to recycle the tapes, and so from a time perspective at least, the duty to preserve had arisen.  But the city did not then know that the Commissioner had deleted relevant emails and the tapes might be the only place they could still be found.  

This situation raises the issue of the scope of the duty to preserve; did it extend to backup tapes?  Clearly the preservation duty applied to “live” ESI, to the easily accessible email on the city’s computers, but did it also run to the backup tapes?  Some would say yes, especially legal counsel representing a party with little electronic evidence at issue.  They disregard or attempt to minimize the cost and disruption caused by the routine imposition of holds on backup tape operations. The plaintiff, Oxford House, was of that ilk, and argued that the city had a duty to preserve backup tapes; but the court did not agree.

The backup tapes used by Topeka were disaster recovery type tapes.  They were not reasonably accessible, meaning they could be accessed, but only at great cost and expense.  In fact, the city estimated a cost of at least $100,000 to restore and review the tapes.  Judge Sebelius in Kansas, like Judge Scheindlin in Manhattan, was right to hold that these kinds of tapes do not have to be preserved.  A company should not have to stop its normal, good faith operation of recycling disaster recovery tapes every time litigation is threatened or materializes.

The City of Topeka first opposed plaintiff’s sanctions argument on the backup tapes the same way it opposed sanctions for deletion of the live email.  The city argued that the relevant emails had already been deleted from the backup tapes before August 2005, and so a duty to preserve never arose before deletion.  They made this claim because the backup tapes are supposed to be recycled every six weeks.  Since there was an approximate eight week gap between the estimated time of email deletion, and notice of pending litigation, the city argued that the emails in question were no longer on the backup tape in August, 2005.  In effect, they argued that the notice to preserve came two weeks too late, and so there was no need for the court to consider whether the scope of duty included backup tapes. 

Judge Sebelius recognized that it was a close question as to whether the emails would still have been on the backup tapes or not. Of course the city argued that its normal recycling procedures had been followed, and for that reason the emails would already have been written over in six weeks. But this is a slippery slope of an argument because it is hard to know if the exact timing of the recycling protocols were in fact followed, and the timing here was close.

If the facts alleged by the city had been proven, which is difficult to do, then once again there would have been no spoliation based on timing.  The erasure of the backup tapes, just like the deletion of the emails, would have occurred before a duty to preserve arose.  Then the court would not have had to decide whether the duty to preserve extended to backup tapes.  But the city’s argument was on shaky grounds, and apparently not well confirmed by affidavits or depositions.  In any event, the judge chose to reject it, and face the issue of the scope of preservation head on. Still, in other circumstances with a more fully developed evidentiary record, this argument alone might succeed. 

The court denied plaintiff’s motion for sanctions for backup tape spoliation based on the assumption that the deleted emails were still on the backup tapes in August at the time the duty arose.  In the words of Magistrate Judge Gary Sebelius:

In the court’s view, even if such back up tapes were conclusively shown to possess the deleted e-mail communications, “as a general rule, a party need not preserve all backup tapes even when it reasonably anticipates litigation.” Zubulake, 220 F.R.D. at 217. When parties put a litigation hold policy on destruction of documents in response to pending litigation, “that litigation hold does not apply to inaccessible back-up tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company’s policy.” Id.  The record in this case indicates that the back-up tapes are used for disaster recovery purposes.

The decision goes on to consider the related issue of whether the city should be forced to search its current backup tapes now, almost two years after the emails in question had been deleted.  Plaintiff argued that there was a chance the emails were still on the tapes in spite of their reuse. Plaintiff wanted to put the City of Topeka to the expense of undertaking the restoration and search of backup tapes on the chance that the emails in question had never been written over.  Plaintiff argued that the emails could possibly still be on the tapes because they might have been stored at the very end of the tapes, and no subsequent backups went that far.  This argument was based more on hope than reason, and was rejected by the Court:

It is certain that the cost of retrieval of data would be high. However, this factor is not dispositive–consideration must also be given to the potential efficacy of a technique seeking discoverable information. The court finds such efficacy is minimal at best in the instant case. The City of Topeka continually rewrites new data over the prior date on its back-up tapes.  Therefore, unless the latter back-up tape did not write as close to the end as the previous back up tape, this information has likely already been written over. As the likelihood of retrieving these electronic communications is low and the cost high, this court further finds that the unanswered portion of Plaintiffs’ Interrogatory No. 4 is unduly costly. The court thereby denies plaintiffs’ motion to compel further responses to Plaintiffs’ Interrogatory No. 4.

Aside from the odd procedural basis of this dispute arising from an objection to an interrogatory, the opinion itself is notable for never mentioning new Rule 37(f), which states:

Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.

The full commentary for Rule 37 (f) is contained in the Blog page above “37”. 

You would expect a full analysis of the issues in this case to include the new “safe harbor” rule.   The “exceptional circumstances” exclusion to the safe harbor is intended to apply to some situations where a duty to preserve has arisen.  In this case, the plaintiff would argue that the duty arose by notice of the pending litigation. There are other circumstances where the duty can arise, and the safe harbor be lost, such as by statute or regulation requiring emails or other ESI to be retained for certain periods. 

Perhaps the Court did not go there because it did not have evidence that the Commissioner’s email deletion was a “routine, good faith operation.”  In any event, the Court chose instead to rely upon the well established common law elements of spoliation.  It did not go into the related, but separate, and as yet largely untested provisions of the new rule.  Still, in most circumstances you would want to include the Rule 37(f) arguments in this kind of spoliation dispute.

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