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.

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