Electronic Legalities

The Backup Tape Issue

Another new federal ruling states that organizations don’t have an obligation to provide electronic information that is not reasonably accessible unless there is good cause—say, it’s known to contain information relevant to a case—says Dan Oberdorfer, a shareholder with Leonard Street and Deinard in Minneapolis. “Perhaps e-mail no longer exists on a network server but only on your backup tape, which can be difficult and sometimes expensive to search to find relevant data for a certain time period,” he says. “That is an example of something you wouldn’t be expected to search as a matter of course, but only upon special request.”

Most organizations use some form of backup tape to regularly copy data from hard drives and networks and protect it in the event of crash or failure. It’s also common practice to reuse tapes. Although most courts understand it’s not practical to require companies to stop routine reuse of backup tapes just because litigation may be imminent, there are exceptions, Moskowitz says. If litigators can identify portions of tape that include documents or e-mail communication from a key player involved in a court case, an organization may have a duty to preserve the tape. “If it turns out important information had indeed been captured on a backup tape, and it would have been easy to retrieve that information before the tape was reused, companies can be sanctioned by the courts for not doing that,” Moskowitz says.

The backup tape issue played a prominent role in a landmark electronic discovery case in 2002 that resulted in a $29.2 million jury verdict for the plaintiff. In that case Laura Zubulake filed a suit against her employer, UBS Warburg Company, alleging sex discrimination and retaliation. A discovery dispute soon emerged regarding Zubulake’s request that UBS produce “all documents concerning any communication by or between UBS employees concerning the plaintiff (Zubulake).” According to court documents, UBS produced only 100 e-mails, saying that it was the extent of its files. But Zubulake’s attorneys found that UBS never searched any of its backup tapes containing archived e-mails. That launched a two-year discovery dispute that ended in the large monetary settlement against UBS.

“The question at the heart of most electronic discovery cases is ‘What is reasonably accessible data?’” says Scott Larson, managing director at Stroz Friedberg, a Minneapolis consulting and technical firm specializing in computer forensics. “What is reasonable is decided by a judge or is agreed to by both parties, because in some cases what is good for the goose is good for the gander.” In other words, if one side in a lawsuit requests all backup tapes from its opponent for the past five years, the other side can do so as well.

Larson says a provision of the new federal rules allows for sampling of backup tapes, or taking a selection of tapes from a certain period “to see if it’s worthwhile from a cost and effort standpoint to retrieve anything pertinent to the investigation from that period of tape.”