Redefining Reasonably Accessible: Is New Technology Making 'Inaccessible' Obsolete?
On April 12, 2006 the United States Supreme Court approved the proposed amendments to the Federal Rules of Civil Procedure that address the discovery of electronically stored information (ESI). The new proposed rules and amendments took effect on December 1, 2006.
Rule 26(a) expands the definition of ED material from "documents" or "data compilations" to include all electronically stored information (ESI). This means you can now discover everything from e-mail and word documents to voicemail, instant messaging, back-up tapes, database files and more.
Rule 26(b)(2)(B): General Provisions Governing Discovery; Duty of Disclosure; Discovery Scope and Limits; Limitations. "Reasonably Accessible"
Accessibility of Electronically Stored Information (ESI)
Key Aspects of Updates to FRCP
The Unlabeled "Box of Tapes"
So What's on a Tape?
Defining Your Retention Requirements- Avoid holding unneeded tapes that could be subject to discovery (Defensible Methodologies)
Overcoming a Reasonably Accessible Defense
Rule 26(b)(2)(B): General Provisions Governing Discovery; Duty of Disclosure; Discovery Scope and Limits; Limitations. "Reasonably Accessible"
"Reasonably Accessible"
Under accepted changes to Rule 26(b)(2) a party seeking discovery of electronically stored information that is 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 accepted 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 may not include disaster recovery data, legacy data, deleted data, or other data that requires significant cost, effort, or burden to produce.
Accessibility/inaccessibility of data under new Rule 26(b)(2)(B)
Draft amendments embody a "two-tier" analysis of accessibility of ESI based on burden or cost.
- "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." Proposed Rule 26(b)(2)(B).
- Court may order discovery of inaccessible data for good cause shown and can specify the terms and conditions for the production.
- Motion to compel or for protective order
- May need "discovery" for discovery - 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)
Accessibility of Electronically Stored Information (ESI)
- Generally backup tapes and media in general used for disaster recovery have been considered inaccessible. (This is NOT always the case)
- When used for active information storage and archiving, they will be considered accessible. (day-to-day operations)
Key Aspects of Updates to FRCP
- "Electronically stored information" or "ESI" is specifically addressed in the rule changes.
- Early attention to e-discovery issues is now required of parties and counsel.
- Goal of the rules changes is to avoid "surprises" on either side by requiring more transparency in the process.
- The court will get involved to manage the process of discovery if necessary.
- You may be required to disclose full backup catalogs.
- Depending on the circumstances and requirements of the tapes, you may be required to provide samples of disaster recovery backup tapes that were previously considered inaccessible.
The Unlabeled "Box of Tapes"
- What's on the tape?
- When was the tape created?
- Are you preserving tapes that fall outside of a litigation hold?
- Are you holding tapes that fall outside of your current retention policy?
So What's on a Tape?
Header Scans - Header scans produce all available information in the backup header (where available), including the backup date and backup software. This information is useful when backup administrators put copious notes into the scheduled backup sessions or when the customer knows that their e-mail server runs on (for example) NetBackup and their file servers run on Backup Exec. Internal volume IDs are also produced. This is important when there are no external volume IDs or when there are inconsistencies between the internal and external volume IDs.
Server-level Scans - Server-level scans produce everything from the header scan plus a listing of all backup clients (servers) with data located on the tape (where available). The date of a particular server backup is also included for most software types. In addition to the benefits of the header scan, this service is beneficial when you know the name of the server containing data of potential interest. For example, the Exchange administrator may know that John Doe's mailbox is on server EXCH-US-ATL-006 so we can examine the entire tape population to look only for the presence of that server.
File-level Catalog - File-level catalogs produce everything from the header scan and server scan. The file level catalog additionally provides (where available) a listing of the file size, file name, file path, create data, modified date, last accessed date, MD5 hash, SHA1 hash, session #, and other available information depending on the backup software.
Tape Restoration - Tape restoration provides access to the files located on the backup tape via hard drives, DVDs, CDs, or any other storage media. We can also do select includes and excludes based on specifics, such as directory structure, extension type, complete file path, and/or combination of specific characters and wild cards.
Defining Your Retention Requirements- Avoid holding unneeded tapes that could be subject to discovery (Defensible Methodologies)
- Need to determine what tapes are necessary for continuing archival
- If your company has created a compliant records retention policy, then generally there would be no need to keep tapes that fall outside of the retention requirements.
- In some cases you may have to adjust retention polices to avoid archiving tapes that are not needed and serve no useful purpose.
- Identify and preserve backup tapes dependent on current preservation requirements and litigation holds.
- Interrogate and adopt the management of your tape media catalogs - manage your tapes, and know where they all reside
- Reliance upon Defensible Methodologies and Documented Controls
- Rules 34(a) 1 and 37(f)
- Sarbanes Oxley
Overcoming a Reasonably Accessible Defense
Deposition Transcript of Mr. John Doe, Backup Administrator, ACME Widget
| Attorney: | "Mr. Doe, during the course of performing your daily job duties have you ever been asked to restore files from backup tapes?" |
| Mr. Doe: | "Yes" |
| Attorney: | "And what disaster occurred that necessitated such a restoration?" |
| Mr. Doe: | "Disaster? There was no disaster! The Vice President of Finance misplaced a file she needed and I was asked to restore the file for her." |
| Attorney: | "So the backups you perform are not just for disaster recovery purposes, but for convenience purposes as well?" |
| Mr. Doe: | "I guess you could say that!" |
The Result
Motion to compel - production of electronic data because ACME routinely accesses disaster recovery data through the normal course of operations.
Cost shifting/sharing - becomes more difficult when the activities are performed as a course of normal operations.
Contact us today to learn more or if you'd like to participate in our Reasonably Accessible CLE.