Arguing Back-Up Tapes Are Not Reasonably Accessible

The Defendants in Johnson v. Neiman sought an order to not produce email messages located on back-up tapes on the basis the electronically stored information was not reasonably accessible. 

The Court agreed and issued a protective order.  Johnson v. Neiman, 2010 U.S. Dist. LEXIS 110496 (E.D. Mo. Oct. 18, 2010).

As the Court stated, “’reasonably accessible’ is best defined as whether the electronically stored information is kept in an accessible or inaccessible format (a distinction that corresponds closely to the expense of production).” Johnson, at *4. 

Federal Rule of Civil Procedure Rule 26(b)(2)(B) limits the production of electronically stored information as follows:

 (B) Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

Johnson, at *3-4. 

The Defendants explained the responsive data was on 5,880 back-up tapes.  Johnson, at *4. 

Further, it would take 1.5 hours to catalog a tape and 1 hour to restore (or 14,700 hours). 

Creating a PST would take approximately 5 minutes per each Outlook e-mail account and there were 13,468 email accounts (which would take 67,340 minutes/1,122.3 hours/46.7 days for PST creation). 

The estimated hourly cost was $76.03 ($1,117,641.00 for the tapes and $85,328.47 for the PST creation).  Johnson, at *4-5. 

The Court found, based on the facts presented, the back-up tapes to be not reasonably accessible.  Johnson, at *5. 

The Pro Se Plaintiff countered that the back-up tape “evidence is relevant and material to the defendants intent, state of mind and to prove other subjective bad feelings towards the Plaintiff.” Johnson, at *5.  While not a direct good cause argument, the Court evaluated the Plaintiff’s argument under the 7 factor “good cause” test stated in the Advisory Committee Notes to the Federal Rules of Civil Procedure.  Johnson, at *5-6. 

“Good Cause” Inquiry includes:

(1) The specificity of the discovery request;

(2) The quantity of information available from other and more easily accessed sources;

(3) The failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources;

(4) The likelihood of finding relevant responsive information that cannot be obtained from other, more easily accessed sources;

(5) Predictions as to the importance and usefulness of the further information;

(6) The importance of the issues at stake in the litigation; and

(7) The parties’ resources.

Johnson, at *5-6, citing Fed. R. Civ. P. 26(b)(2) advisory committee’s notes (2006 Amendment).

The Plaintiff, in the words of the Court, had “no idea what, if any, discoverable information may be obtained by cataloging, restoring, and searching the MDOC e-mails that are stored on the backup tapes.” Johnson, at *7-8. 

Furthermore, the Defendants produced over 914 documents in their initial disclosures and an additional 1500 pages in response to the Plaintiff’s discovery request.  Johnson, at *6-7. 

The Court held that there was a “slim likelihood that new and relevant information may be discovered does not outweigh the substantial burden and expense required to retrieve the information from the backup tapes.” Johnson, at *8. 

Bow Tie Thoughts

The dogmas of the quiet past are inadequate to the stormy present. The occasion is piled high with difficulty, and we must rise with the occasion. As our case is new, so we must think anew and act anew.

Abraham Lincoln, December 1, 1862.

Case law for nearly a decade has taken the position that back-up tapes are inaccessible as a matter of course.  Technology has changed so that dogmatic position is no longer valid.

There are new tools, such as Index Engines, on the market that reduce the cost to searching back-up tapes to $250 a tape. 

The challenge is this product knowledge seems limited to service providers and not the attorneys arguing that back-up tapes are not reasonably accessible.   Many attorneys still consider that back-up tapes are not reasonably accessible as a truism, unaware that technology has greatly reduced the cost arguments.  This is not a surprise, since lawyers are busy focusing on the subject matter of their cases and not watching for the newest e-Discovery product. 

In the current case, the prospect of restoring nearly 6,000 back-up tapes would still have been an instant undue burden argument at $250 a tape.  However, if the back-up tape count could be narrowed to a specific timeframe to reduce the tapes to a manageable number, indexing the data might not be cost prohibitive.  Moreover, sampling 5 or 6 back-tapes should not be unduly burdensome in determining if any further discovery is warranted.

This case is also a prime example of the importance of the Rule 26(f) conference and being able to state why a set of back-tapes is relevant.  It is highly unlikely a requesting party would want to review over 13,000 email accounts and restore all 5,880 back-up tapes.  Moreover, the workflow of manually creating PST’s and an hour to restore back-up tapes sounds like the work is being conducted by the party itself.  An outside service provider with the collection tools could greatly reduce the cost of collection and production. 

Regardless, the Plaintiff having “no idea what, if any, discoverable information may be obtained by cataloging, restoring, and searching the MDOC e-mails that are stored on the backup tapes,” certainly did not help their restoration arguments. Johnson, at *7-8.

While discovery in this case would not be cheap, it would likely be a lot less than argued in the opinion, if back-up tape indexing tools were used, custodians narrowed and a date range defined so there was a reasonable number of back-tapes.  Whether or not that would still mean the ESI was not reasonably accessible because of undue burden or cost would still need to be analyzed under Federal Rule of Civil Procedure Rule 26(b)(2)(B).

e-Discovery is always evolving.  As part of our duty of competency as attorneys, we need to be aware of the tools that can save costs and provide technologically correct arguments to the Court.  Just because one form of ESI was unduly burdensome in 2004, does not mean it is a dogmatic truth it will continue to be unduly burdensome in 2010.


  1. The two questions that really should be asked here are:

    1) WHY did this organization have 5,880 ‘backup’ tapes given the purpose of backups tapes is to restore systems in the event of a catastrophic loss or crash

    2) IF it was astronomically expensive (an undue burden) to search them, would they have exercised a search of their contents if doing so could help THEIR OWN case?

    During a data mapping exercise, one of the things that typically is reviewed are policies and procedures, and if policy states why backups exist and their purpose, but procedures contradict how long they are retained, then they SHOULD be discoverable.

    Too often organizations procedures/practices do not comply with their stated policies, and more needs to be done to bring the two in line to avoid such contradictions.

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