e-Discovery Processing
Media Restoration
When considering the initial scope of a request for electronically stored information (ESI) and its relevance to a specific electronic discovery matter, most groups focus on active data from email servers, archiving systems, and local computer hard drives. As sources of relevant and accessible data are considered further, requirements often lead to other formats of media including back up tapes and other offline media. As both the courts and opposing counsel become savvier about these sources of data it is critical that corporations and their counsel have effective ways for managing this information as part of the electronic discovery process.

With courts looking more closely at ESI backup media becomes exposed. Some case law studies over the last few years have highlighted the requirement for backup tape restoration. Some examples include:
    Kipperman v. Onex Corp. (N.D. Ga. May 27, 2009): In this fraud action a dispute arose whether the defendant was obligated to search and produce documents that existed on backup media. As part of a broader discovery ruling that also included cost shifting it was determined that the defendants would pay for a limited search of back up tapes designated by the plaintiff.

    Best Buy Stores, LP v. Developers Diversified Realty Corp. (D. Minn. Feb. 1, 2007): A discovery dispute arose in the matter when the defendants appealed a district court order to produce ESI from backup tapes claiming the process was both time and cost prohibitive. The defendants claimed that technological constraints beyond their control rendered compliance impossible. The court upheld the lower courts decision stating the defendants offered no proof other than conclusory statements about the cost to obtain documents. The court ruled that cost statements cannot shield the defendant from discovery and ordered them to produce documents from backup tapes.

    Shirk v. Fifth Third Bancorp, 2008 U.S. Dist. (S.D. Ohio Sept. 26, 2008): The initial order in this case required the defendant to restore specific backup tapes that included data during the relevant time period (2 years). During the process of restoring this data the defendant identified additional backup tapes made during the same date range but did not restore or produce data from these tapes. In the second order the court did not excuse the defendant from restoring data from these tapes and the defendant was compelled to restore the tapes and produce relevant data.

    Puckett v. Tandem Staffing Solutions, Inc., 2007 U.S. Dist. (N.D. Ill. June 27, 2007): Initial production in this matter by the defendant was of hard copy documents that were said to be duplicative of data residing on backup tapes. Ultimately the defendant was ordered to restore the backup tapes and produce the electronic files because the court ruled that the defendant's usual course of business was to maintain documents in their electronic format.
With a greater emphasis being placed on relevant data that might exist on backup media, it is important for corporations and their legal teams to understand the available technologies and approaches that can best be presented to the court.

The Oliver Group has been providing media/tape related solutions for more than a decade and have helped our clients navigate through the myriad of issues they face when dealing with ESI on backup tapes. A consultative approach helps clients consider some of the solutions that help mitigate both the risks and costs associated with the process. Key discussion topics often include:
    Is there a well defined scope of the discovery request including custodian list and timeframe of interest?

    Can custodians be mapped to specific email databases or file server backups? Is cataloging or sampling something that would allow for a more cost effective approach? Were there retention policies related to the email environment and could this have an impact in reducing the scope of tapes required?

    Has the client considered the potential that additional custodians may be requested at a later date and built a plan that addresses this issue?

    Could there be exposure implications/risks to consider related to restoring data not relevant to the matter at hand?

    Has sampling or other techniques been considered to help better assess the volume of relevant information (not already found in live systems) at a specific point in time or the differences in volume at specific points in time?
The Oliver Group provides media/tape related services to top global law firms, a range of corporations in various vertical markets and top e-discovery, litigation support and compliance solutions providers. Each matter starts the same way, with a detailed understanding of the matter at hand and a consultative discussion on all potential paths forward. Every matter is managed with extreme care as we employ and maintain a pristine chain of custody and utilize defensible processes from start to finish.