Are Computer Backups Discoverable?

[David Jordan]

There seems to be great disagreement over whether computer backups are routinely discoverable during e-discovery.

Some say backups are generally not discoverable. This seems to be based on the notion that backups are too expensive to restore so backups are deemed "not reasonably accessible" by default.

But many backups are not difficult to restore, so they should be deemed "accessible" and discoverable by default. For example, if someone backs up their laptop's My Documents folder to a DVD or CD, it is technically a "backup" but certainly is easy to access.

I have consulted with a number of e-discovery attorneys on this and they have different views. Maybe it depends on the type of backup at issue in each individual case. However, at CLEs and other seminars, people have made blanket statements that "backups are not discoverable." In my opinion, the legal standard is not whether the data is deemed a "backup," but whether the data is "not reasonably accessible."

What do you think?

[Skates]

May this attorney from California weigh in? The problem with the word "backups" is that in itself, that causes a problem - and we attorneys must be precise.

There's a huge difference, for example, between a standard 'backup & restore' vs. a true 'disaster-recovery' system. In addition to that, you have the issue of whether the data is hot, cold or somewhere in between. Also, you may not just be looking for data per an adversarial subpoena - you may also want it to exculpate your client.

Shameless plug alert #1 - here's a two-part blog post I wrote on the subject:

e-Discovery Insights: Disaster, Recovery and e-Discovery - What You Don't Know CAN Hurt You
e-Discovery Insights: Testing 1-2-3...Are you 'Really' Ready for a Litigation Request?

It should be noted that the "accessible vs. inaccessible" argument comes from the Zubulake series of cases.

Shameless plug alert #2 - Here's an article from my blog in which my group successfully helped Sony Pictures Entertainment (Tri-Star) defend a discovery request from Reebok over the movie Jerry Maguire - it's a classic Zubulake "cost-shifting" argument years before there was a Zubulake:

e-Discovery Insights: Back to the Future - Reebok v. Tristar, 1996 (the "Jerry Maguire" case)

But there are products today that facilitate the easy cataloging of tapes such as Index Engines (I have no affiliation with them) and this changes the game, somewhat.

As such, I can't answer your poll question because it would be 'yes' and 'no' - depending on the facts of the instant case.

[NN Attorney]

Skates is right on. "Backups" is a vague term relating to a broad category of data storage types. Some are easy and cheap to restore; others are difficult and expensive to restore. Attorneys cannot assume a "backup" is accessible or not. Attorneys must determine the difficulty and cost in restoring the particular backup data at issue in a case. This analysis then provides the basis for cost-shifting when data is not reasonably accessible.