In addressing the discovery of information stored on backup tapes, courts make an implicit and critical distinction between “disaster recovery” backup tapes and backup tapes that are used to archive information. Many courts have concluded that the former are not reasonably accessible and thus require a finding of good cause under Federal Rule of Civil Procedure 26(b)(2)(B) before permitting discovery to proceed but that the latter are presumptively subject to discovery. Despite the number of decisions addressing backup tapes, there is an unsettling paucity of guidance from the courts on what actually constitutes a “disaster recovery” backup tape as distinguished from an information archival tape. Companies therefore are unable to make educated information technology and legal decisions.

This article will first review the little guidance that courts have provided on this critical issue. It then will propose a straightforward test for courts to apply when confronted with backup-tape discovery motions and for clients to consider when structuring backup-tape recycling polices and evaluating the expected costs of discovery.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]