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October Edition

About Tape Backups
Some Thoughts on the Meaning of 'Reasonably Accessible'

About Tape Backups

Backup and archive tapes typically hold a complete copy of all electronic data used by a company. A backup tape will hold a complete copy of all e-mails stored before and up to the day the copy was made, along with all business documents, finance information, operational transactions and all of the computer programs that make the system run. Tapes will contain a snapshot of the business allowing full analysis of any particular period and detailed comparison between any two or more periods.

Backup tapes will retain copies of e-mails that a user has marked for deletion but have not been 'purged' by the systems administrator. This procedure is often only run on a monthly basis which means there may be an ongoing record of communications that the user believes was removed some weeks before.

Types of Backups

Full Backups
A full backup copies all the files on the system-the system files, the software files, and the data files. You should perform a full backup on a weekly, bi-weekly, or monthly basis. With a full backup of your data set on tape, you can restore your entire system if a disaster destroys the original files.

Partial Backups
A partial backup copies all files that have been added or changed since the last backup job. There are two main types of partial backups: incremental and differential, summarized below.

Incremental Backups
Incremental backups include files added or changed since the last full or partial backup. Organizations may perform a regular backup of all files (weekly, bi-weekly, etc.), then a more frequent backup (daily) of only the files that have changed since the last backup session.

This full/incremental backup method means that fewer files need to be copied and less time is required for the backup procedure. However, this method can also make a complete system restore slower if you have created many different incremental backup tapes (one for each day of the week, for example), or if you need to restore only a particular file and must hunt through several different incremental backup tapes.

Differential Backups
Differential backups include files added or changed since the last full backup. Organizations perform a regular backup of all files (weekly, bi-weekly, etc.), then a more frequent backup (daily) of only the files that have changed since the last backup session. This full/incremental backup method means that fewer files need to be copied and less time is required for the backup procedure. However, this method can also make a complete system restore slower if you have created many different incremental backup tapes (one for each day of the week, for example), or if you need to restore only a particular file and must hunt through several different incremental backup tapes.

BACKUP TYPE	ADVANTAGES	DISADVANTAGES
Incremental (all new or modified files since last full or partial backup)	Faster backup time because there are fewer files. Reduced wear on backup device and tape. Fewer tapes may be required.	Slower restore times because there may be more than two tapes required (the full backup tpe and each incremental tape.) Higher cost of downtime in a system disaster.
Differential (all new or modified files since last full backup	Faster restore times because there are only two tape sets required (the full and differential backup tapes). Lower cost of downtime in a system disaster.	Slower backup process because more files are copied. Increased wear on backup device and tape. More tapes may be required.

Frequency of Backups
Because data files change every time someone enters new information, many companies back up the data files every day (or only those files that have changed) and then perform a complete backup of the entire system on a weekly, bi-weekly, or monthly basis.

Why Incremental Backups
The real benefit of incremental backups lies in the fact that even if the user has deleted the e-mail and the IT administrator has cleaned up the deleted messages, then simply going back to the last tape created could yield the information you need.

When to Backup Tapes
Ideally, you should back up data after regular business hours when employee demands on the network are at a minimum. This off-hours time frame is called the "backup window." Most small companies have an adequate backup window to perform backup jobs at night and on weekends.

eMag Solutions offers over 40 years of experience and expertise with backup tapes, providing restoration, recovery, conversion, stacking, duplication, and destruction services for any kind of backup tapes, along with other media such as optical platters, hard drives, disks, and portable media. For more information, please contact us, and to view a list of supported media formats, please visit supported media formats.

Some Thoughts on the Meaning of 'Reasonably Accessible'

By Brett Tarr

The revised Federal Rules of Civil Procedure (FRCP) were intended to provide guidance to organizations and their law firms in managing a changing litigation environment. Many of the procedural requirements involving discovery requests and materials involved in litigation are being re-examined because of the continually evolving technology around retrieval and restoration of backup tapes, as well as archived and legacy data.

One of the changes coming out of the revised FRCP is Rule 26(b)(2) addressing what is ''reasonably accessible'' data. Under this rule, a party need not produce electronically stored information (ESI) that is not reasonably accessible.

Text of the Rule.

Under revised Rule 26(b)(2) a party seeking discovery of ESI that is claimed to be not reasonably accessible must first obtain a court order based on a showing of good cause. The good cause analysis weighs the requesting party's need for the information against the burden on the responding party.

While the amendments do not define the term, the Committee Notes suggest that reasonably accessible information likely includes any information that the responding party routinely accesses or uses, but might not include disaster recovery data, legacy data, deleted data, or other data that requires significant cost, effort, or burden to produce.

The new FRCP created a two-tier analysis of accessibility of ESI based on burden or cost. ''A party need not provide discovery of ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost.'' FRCP Rule 26(b)(2)(B). Courts may order discovery of inaccessible data for good cause shown and can specify the terms and conditions for the production by ruling on either a motion to compel or a motion for a protective order. (''Discovery for discovery'' may be needed; see, McPeek v. Ashcroft, 212 F.R.D. 33 (D.D.C. 2003); Delta Fin. Corp. v. Morrison, 2006 WL 240347 (N.Y. Sup. Aug. 17, 2006); In re CV Therapeutics, Inc. Sec. Litig., 2006 WL 2458720 (N.D. Cal. Aug. 22, 2006.)

A primary goal of the 2006 amendments to the FRCP was to provide greater advice to litigants and courts alike regarding the proper scope of electronic discovery. In light of boilerplate discovery requests that sought every possible shred of ESI that could potentially be relevant to a dispute, regardless of the cost of obtaining this information, judges and practitioners sought a clearer understanding of the boundaries of standard discovery.

After extensive deliberation and input from the legal community, the drafters articulated a standard that certain ESI that was difficult or expensive to retrieve, i.e., not reasonably accessible, need not necessarily be produced in discovery, even if it contains relevant information. However, since its adoption, this standard has been interpreted somewhat differently than many had expected, with a significant number of courts ruling that specific ESI that is admittedly not reasonably accessible must nonetheless be produced, Rule 26(b)(2)(B) notwithstanding. This leaves unsettled the question of how to define ''unreasonable cost'' or ''undue burden''.

Watch Your Language.

Litigants should be careful to distinguish between terms such as ''not reasonably accessible'' and ''inaccessible'' when negotiating or filing with courts. Many attorneys have paraphrased Rule 26(b)(2)(B) to frame their arguments in terms of accessible and inaccessible data. While potentially simplifying the grammar and semantics used to argue a party's position, this formulation inaccurately states the Rule 26 standard, and it can create significant confusion, even for the legal team using these terms. In reality, very little ESI is truly inaccessible. Materials that have been physically destroyed, that have degraded past the point that their media can be read, or are stored on obsolete media that cannot be read by any equipment still in existence qualify as inaccessible. Realistically, it is not possible to extract any meaningful information from these repositories (or former repositories) of digital information.

Due to the impossibility of retrieving information from inaccessible ESI, it could be argued that no preservation obligation, let alone a production obligation, would apply to these repositories, since there is no way to obtain the information locked inside these materials. Truly inaccessible materials are really just a blip on the radar of the discovery process.

On the other hand, anything less than total inaccessibility necessarily suggests that the information stored in the digital repository is, in fact, retrievable with sufficient motivation and resources. It might be extremely difficult or expensive to extract this data from the underlying media on which it is stored, and the effort involved in extracting the data could require such extraordinarily efforts as purchasing obsolete hardware or forensically rebuilding raw data piles into separate, discrete files. However, given the right circumstances and motivation, this information can be retrieved. Thus, in absolute terms, this material is not inaccessible; it is merely not reasonably accessible. This is situation that has inspired litigants' recent frequent and fervent arguments about the proper scope of discovery requests.

In Practice.

Under FRCP 26(b)(2)(B), a party does not have to produce ESI that it claims is not reasonably accessible, but the rules themselves do not define what this term means. On motion by the requesting party, the responding party must show that the information is not reasonably accessible. If that showing is made, the court may order discovery of the information for good cause, and may specify conditions for such discovery. A two-tier system for ESI is thus contemplated. The determination of what is not reasonably discoverable is based on (i) the cost of its retrieval, and (ii) the data that is available from sources that are more accessible. The requesting party must first review data that is reasonably accessible, and then determine whether it is necessary to request data claimed to be not reasonably accessible.

Types of ESI Often Alleged to Be Not Reasonably Accessible.

Some of the items that parties avoiding production often claim are ''not reasonably accessible'' include:

1. Backup tapes: The notes to the FRCP describe data that is only retained for disaster recovery as being not reasonably accessible. This will certainly be used by producing parties to argue that backup tapes fall into this category. Although backup tapes are useful for disaster recovery, they are more commonly used to find a prior version of data because the most recent version has become corrupted, or contains a change that the user no longer desires. No data processing person worthy of collecting a paycheck would tell his employer that the backup data was not reasonably accessible. When backup data is needed for reasons outside of litigation, the information can be obtained, recovered, and used within 24 hours. How inaccessible is that?

2. Archival data: Archival data and backup data are terms that often are loosely used and interchanged. They are actually quite different. The difference is important if one successfully argues that backup data is not reasonably accessible. Backup data are large files, usually compressed onto tape. E-mail and database tapes usually must be recovered in total before being used. Once backup tapes are recovered, individual files can be located and used. In contrast, archival files are specifically identified as being significant, sometimes because of government requirements or for historical preservation. Archival files usually are organized and maintained in their native format. Although archival files are not used actively, in most cases they easily and quickly can be retrieved.

3. Legacy data: Legacy data refers to files that are used with a prior software or hardware combination. Legacy data is more difficult to recover. Legacy data could be likened to paper documents that have been placed in long-term, off-site storage. If such paper records are clearly relevant, a party cannot avoid production by simply asserting that the records are stored off-site. Nevertheless, the new rules imply that such records are not reasonably accessible without getting permission of the court.

4. Computer forensics: Data that has been deleted but simply not overwritten on the magnetic media requires special software and related training to recover. This information truly is not reasonably accessible, and should not be the subject of routine discovery that is paid for by the producing party.

Lessons.

Though the ''not reasonably accessible'' standard extends existing law to a greater extent than it presents new concepts, Rule 26(b)(2)(B) still impacts discovery practice in a number of significant ways.

1. The new language makes it clear that producing parties must be prepared to provide concrete support for their respective positions. Courts are demanding increasingly detailed descriptions of the precise burdens and costs associated with the collection and production of ESI. Instead of attorney argument or corporate affidavits generally claiming that substantial work is required to comply with discovery requests, courts now expect detailed descriptions of the procedures that will be required, including project time lines, anticipated staffing, and itemized expense estimates. In light of the increased effort to document fully the burden of complying with a discovery request, many litigants are choosing to use third-party technical specialists, rather than corporate IT staff, to conduct and present this analysis, on grounds that this testimony is more persuasive coming from objective outsiders.

2. Rule 26(b)(2)(B) also shifts, to some extent, the burden of proving the reasonableness of a discovery request for ESI. Under the rule, a producing party can object to the production of ESI (though not its preservation) on grounds that it is not reasonably accessible. Once that statement has been made, it is up to the requesting party to show why this material should be produced, either because the production burden has been overstated by the producing party or because the requested material is of particular importance to the litigation. Such rebuttal arguments, whether made at a scheduling conference or through formal motion practice, requires the requesting party to present persuasive detail to demonstrate the reasonableness of its requests. That, in turn, may require a requesting party to conduct early IT-related discovery and invest substantial time into understanding a producing party's ESI repositories and computer infrastructure.

3. Courts are deciding Rule 26(b)(2)(B) disputes by allocating production costs. After all, if the requesting party pays for a portion of the expenses, otherwise not reasonably accessible ESI may become accessible, increasing the amount of evidence that may help resolve the legal dispute. Requesting parties are sometimes anticipating this analysis by unilaterally offering to share costs in exchange for receiving disputed ESI.

The Future.

Going forward, an ever-increasing number of reported court opinions will continue to flesh out the meaning of digital information that is not reasonably accessible. However detailed these discussions may be, their precise holdings will still need to be understood in the broader context of when they were written. Today's ''not reasonably accessible'' data is equally likely to become more accessible-or wholly inaccessible-as technology continues to develop in different directions. Careful preparation and clear presentation will be a continuing part of successfully requesting and producing ESI, whether it's readily accessible or not.

Reproduced with permission from Digital Discovery & e-Evidence, Vol. 8, No. 10, 10/01/2008, pp. 310-312. Copyright _ 2008 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

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