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News

Not Reasonably Accessible? Not For Long . . .

San Francisco, CA — April 7, 2008

Many companies continue to stockpile ESI, fearing that any destruction will, regardless of the safeguards put in place, result in potentially responsive information being deleted. While the risk of sanctions for destruction is reduced with this "strategy", there is a corresponding increase in the risk that relevant information will not be found simply because of the magnitude of what has to be searched. As amended, Rule 26 of the Federal Rules of Civil Procedure has given companies in this position an out by limiting discovery in relation to information that is not reasonably accessible because of the expense or work involved to produce it.

Specifically, Rule 26 (2) (B) (2) provides that "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." And as anyone who has asked their IT department to restore their email after a computer crash knows, no one is quite as adept as showing "undue burden" as the IT folks. As a result, companies have taken some comfort in the hurdle that Rule 26 creates when an adversary presses for information contained on back-up tapes.

But like all things technical, when a challenge or market opportunity presents itself, products and services are introduced to fill the void. Several companies are facilitating, and in the process bringing down, the time and cost of searching and retrieving information from back-up tapes (the offerings that Renew Data and Index Engines showed at LegalTech last month come to mind). While this is good news when you want to find the information, it can create significant problems for those opposing a motion to compel production of information stored on back-up tapes.

Burdensomeness can and generally will be a losing argument, even without technical advances, when a court is confronted with one of the following scenarios:

• the information isn't available through any other source,
• a party has failed to produce even information that was generally accessible, has destroyed the information in its more readily retrievable form, or has otherwise engaged in less than forthright conduct during discovery,
• the party defending against a motion to compel puts forth an estimate to restore back-up tapes that is many times the estimate of the technical expert relied on by the party bring the motion, damaging its credibility, and
• the party defending against the motion argues burdensomeness with generalizations rather than specificity (the "life is hard" ploy).

But when the Court is basing its ruling on an analysis of how burdensome it will be to search through back-up tapes, weighing the time and cost against the potential benefit, technology solutions are going to mean that burdensomeness is no longer a refuge for those whose document retention policies can be summed up in one word — retention.