When “Undue Burden” Includes Back-Up Tapes from the Reagan Era

1987 was an important year: 

Baby Jessica was saved from a well;

Robert Bork was denied a seat on the Supreme Court; and

Teenagers across the world played air guitar to Whitesnake’s immortal “Here I Go Again.”  

It is also the year the Plaintiffs wanted to restore back-up tapes from in Makrakis v. Demelis.

The Plaintiff in Makrakis v. Demelis claimed he was improperly administered a drug in 2006, which caused him to develop kernicterus.  Makrakis v. Demelis, 2010 Mass. Super. LEXIS 223 (Mass. Super. Ct. July 13, 2010).

The Plaintiff brought a motion to compel back-up tapes from 13 hospital employees from 1987 to present.  Makrakis, at *1-2.  Moreover, the Plaintiff wanted the Defendants to hire a third-party vendor to search the back-up tapes with keywords.

The Defendants argued that restoring the back-up tapes would be unduly burdensome and cost prohibitive.  Makrakis, at *2.  Moreover, the Defendants had already obtained a large amount of discovery, including the following:

Hospital records of its investigation of the incident;

Plaintiff’s complete medical records from his five-month admission;

Deposition testimony of at least ten hospital employees; and

Copies of emails from the date of the incident that were preserved on the individual computers of several hospital employees. 

Makrakis, at *2-3. 

The Defendants also explained the cost of restoring the back-up tapes would be $550 per tape.  Makrakis, at *5.  The cost to restore back-up tapes for 16 months from 15 custodians would cost $575,000.  Moreover, the cost to restore back-up tapes going back to 1987 (approximately 264 months) would be “exponentially more expensive and time consuming.” Makrakis, at *5-6. 

The Court found the Plaintiff’s request to be unduly burdensome, because it was over a 22 year period of time.  Makrakis, at *6. 

The Court did strike a balance and allowed sampling of back-up tapes at the Plaintiff’s own expense.  Makrakis, at *6-7.  The Court specifically ordered the following: 

(1) The plaintiffs shall be entitled to obtain a sampling of relevant emails stored on the hospital’s backup tapes;

(2)  The plaintiffs shall determine the scope of the sampling by specifying (1) the applicable period of time, and (2) which email account or accounts must be restored;

(3) The plaintiffs shall bear the cost of restoring and searching the emails in this initial sample of backup tapes;

(4) The hospital shall restore the sampling of backup tapes as requested by the plaintiffs and shall produce all emails contained therein that are responsive to the plaintiffs’ discovery requests;

(5) Based on the information obtained from this sample, the plaintiffs may move for a further discovery order to compel further production of emails stored on backup tapes.

Makrakis, at *7-8. 

Bow Tie Thoughts

I think it is important to note that the cost of restoring the back-up tapes was only $550 a tape, which is actually a very reasonable number compared to 6 years ago in Toshiba America Electronics Components v. Superior Court, 124 Cal. App. 4th 762, 764 (Cal. App. 6th Dist. 2004). 

While restoring back-up tapes was considered “not reasonably accessible” because of cost several years ago, it is not necessarily the situation today.  Technology has improved to allow the indexing of back-up tapes at a fraction of the cost in the mid-2000’s (and sometimes lower than the amount cited in this opinion). 

However, when you factor in a request going back 22 years, the back-up tapes might as well contain data from the Apollo program.  One can imagine how many different generations of technology would be involved when the top personal computers in 1987 were running Windows 2.0 and the newest feature was the PS/2, the 6 pin port for a Mouse.