I 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.