Assertion That Electronic Data Is “Not Reasonably Accessible” Must Be Supported

May 2007

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Under Federal Rules of Civil Procedure (FRCP) 26(b) (2) (B), a party need not produce electronically stored data (ESI) that is not reasonably accessible, but the rules do not define what this means. Specifically,

"A party need not provide discovery of electronically stored information that the party identifies as not reasonably accessible. On motion by the requesting party, the responding party must show that the information is not reasonably accessible. If that showing is made, the court may order discovery of the information for good cause, and may specify conditions for such discovery."

A two-tier system for ESI is mandated. The determination of what is not reasonably discoverable is based on (i) the cost of its retrieval, and (ii) the data that is available from sources that are more accessible. The requesting party must first review data that is reasonably accessible, and then determine whether it is necessary to request data claimed to be not reasonably accessible.

Lessons to be Learned

A recent case clarifies the above-described process. This is a recurring issue, so the case has broad interest. Here are the lessons to be learned from Best Buy Stores vs. Developers Diversified Realty (2007 WL 333987 (D. Minn.)):

1. Do not assume that there is an automatic designation of backup tapes as being “not reasonably accessible.” The rule requires the producing party (in this case, the defendant) to produce evidence that supports their contention. The Best Buy Court concluded:

“Defendants offer no proof, aside from conclusory statements, about the cost to obtain documents from electronic archives. So this concern cannot shield the defendants from discovery here.”

2. Address these issues early. The potentially producing party in the Best Buy case assumed that the issue of whether the tapes should be restored was not yet ripe for determination. The Court thought otherwise, and determined that further wait was unnecessary. Defendants later produced additional information supporting the non-production, but the Court was unimpressed with the untimely information.

3. Get technical help. Most of the disastrous consequences occur because should-have-been-known facts and files are uncovered later. Understanding your client’s computer systems and data can be technically complex. If you have both the technical knowledge yourself and a cooperative IT client representative, you may be able to do this alone. However, in most cases, your client and you are well served by having an outside consultant who understands both the legal rules, and the technology.

The production at issue was substantial, totaling 345 backup tapes. Defendants claimed that the cost to recover the tapes could be as much as $500,000, not including attorney costs for privilege and relevance. Had the defendants handled themselves differently, much of this cost might have been avoided.

If ESI is Inaccessible, Why Are You Keeping It?

Here are the items that parties avoiding production often claim are “not reasonably accessible”:

1. Backup tapes - The notes to the federal rules describe data that is only retained for disaster recovery as being not reasonably accessible. This will certainly be used by producing parties to mean that that back-up tapes fall into this category. Although back-up tapes are useful for disaster recovery, they are more commonly used to find a prior version of data because the most recent version has become corrupted, or contains a change that the user no longer desires. No data processing person worthy of collecting a paycheck would tell his employer that the backup data was not reasonably accessible. When backup data is needed for reasons outside of litigation, the information will be obtained, recovered and used within 24 hours. How inaccessible is that?

2. Archival data - Archival data and backup data are terms that are often loosely used interchangeably. They are actually quite different. The difference is important if one successfully argues that backup data is not "reasonably accessible." Backup data are large files, usually compressed onto tape. Email and database tapes usually must be recovered in total before being used. Once backup tapes are recovered, individual files can be located and used. In contrast, archival files are specifically identified as being significant, sometimes because of government requirements or for historical preservation. Archival files are usually organized and maintained in their native format. Although archival files are not used actively, in most cases they can be easily and quickly retrieved.

3. Legacy data - Legacy data refers to files that are used with a prior software or hardware combination. Legacy data is more difficult to recover. Legacy data could be likened to paper documents that have been placed in long-term, off-site storage. If such paper records are clearly relevant, a party cannot avoid production by simply asserting that the records are stored off-site. Nevertheless, the new Rules imply that such records are not reasonably accessible without getting permission of the court.

4. Computer forensics - Data that has been deleted but simply not overwritten on the magnetic media requires special software and related training to recover. This information truly is not reasonably accessible, and should not be the subject of routine discovery that is paid for by the producing party.

For information on establishing an ESI document management plan, see Reducing Discovery Costs … Before the Litigation Starts.

Fulcrum Inquiry has electronic discovery and forensic accounting experts that frequently assist litigants and their lawyers resolve disputes. By combining business and accounting skills with technical computer capabilities, we are able to offer more practical advice regarding computer forensics and electronic discovery.