Backup Tapes No Longer As Inaccessible

Backup tapes have long been regarded as an inaccessible format, and so the difficulty and cost of production of relevant data from such tapes may be shifted to the requesting party. The Tip of the Night for September 14, 2015 discussed Judge Scheindlin's seven factor test in Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003), to determine if the cost of production should be shifted from the producing party to the party demanding the production. This landmark decision marked backup tapes as an inaccessible form of digital media, and after the 2006 amendments to the Federal Rules of Civil Procedure, Rule 26(b) stated that ESI need not be produced if it was not reasonably accessible because of undue burden or cost.

The burden of searching backup tapes may be less for some companies than for others. As Daniel Garrie explains in Are Backup Tapes Accessible in EDiscovery? , companies which have implemented their own in-house backup tape system (rather than delegating the task to an outside vendor) may use it on a regular basis and be familiar enough with the tapes to ease the burden of locating needed data. Retrieval of data from backup tapes used to involve the following steps:

1. Consulting an inventory of the tapes.

2. Determining the software used to create the backup tapes.

3. Calculating how much data was stored on each tape.

4. Restoring and copying the data to an online system.

5. Indexing the data.

6. De-duping the data.

7. Searching through the data.

Recently backup tape systems have been developed which can be indexed without copying data off the tape and on to a network. Index Engines, a company which helps businesses manage their data centers, touts its ability to use automated software to search data tapes onsite without the use of the original software used to create the tapes.