eDiscovery Abuse and Backup Tapes


The eDiscovery case referenced below is a prime example of the how email server backup tapes are still a major target in Discovery and can be extremely costly to produce. When asked to discover two email server backup tapes, the defendants strongly opposed and indicated that searching the two tapes would cost more than $600,000.

Now I find this to “cost” to be beyond the realm of common sense. There are many federal civil cases that have established the cost of backup tape restoration to be between $2300 and $4500 per tape.

The main points to consider here is that backup tapes are discoverable and therefore subject to a litigation hold and backup tapes are expensive to discover. If you were to have an ESI archive, and applied a backup tape recycling policy that is shorter than your ESI archive retention policy, than your backup tapes would almost never be asked for in discovery.

Finding Defendants’ Behavior “a Textbook Case of Discovery Abuse,” Court Orders $1,022,700 in Monetary Sanctions

From eDiscoverylaw.com

In this constructive transfer and fraud case arising out of the 2003 bankruptcy of Magnatrax Corporation, plaintiff alleged numerous discovery abuses on the part of defendants and sought sanctions accordingly. Among the abuses described were several allegations related to defendants’ failure to produce information stored on backup tapes, even upon being ordered to do so, and other various and related misdeeds. Calling defendants actions a “textbook case of discovery abuse,” the court found in favor of plaintiff but declined to strike defendants’ answer, as requested, and ordered defendants to pay plaintiff $1,022,700 in monetary sanctions.

In his motion for sanctions, the plaintiff established six categories of alleged discovery abuses, including the category “electronic or email discovery.” Details of the alleged discovery abuses in this category revolved around the question of defendants’ obligation to restore and produce responsive information stored on backup tapes. The question arose in light of the notable lack of email identified as responsive following defendants’ initial search of their electronic systems and in light of another party’s production of emails that should also have been produced by defendants, but were not. Defendants explained that the emails were likely stored on email backup tapes. Defendants further indicated their belief that they were not required to bear the burden and expense of restoring and searching the tapes but agreed to consider such action if plaintiff would pay.

Addressing plaintiff’s allegations surrounding the backup tapes, the court indicated its understanding of defendants’ initial refusal to produce electronic discovery from its backup tapes, but went on to condemn defendants’ subsequent behavior including their “blatant misrepresentations about the value of e-mail discovery in this case in an effort to influence the court’s ruling…and for behaving as if they, and not the court, got to decide what…was relevant…and what was not.”

Read the entire case description at eDiscoverylaw.com

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