Backup tapes are commonly targeted during electronic discovery, but without proper methodology, tape restoration can be expensive and burdensome. Law firms have an obligation to limit costs, and an experienced tape restoration partner can be an important resource.

A backup set is likely to contain a large amount of redundant and irrelevant data. Combing through a large set of data tapes can cause an enormous increase in e-discovery expenses — and when legal teams attempt to perform ediscovery in-house, backup tapes often create operational bottlenecks.

Nevertheless, most legal teams will eventually need specific data from backup or archival tape cartridges. Enterprises rely on tape, as it offers low pricing and practical utility. Many tape formats can be stored for decades without data loss, and since tapes aren’t as susceptible to environmental factors as other magnetic media, they’re the standard technology for long-term data retention.

Are data tapes accessible, or do they create an undue burden?

Defendants may reasonably claim that tape restoration is too expensive or time-consuming, but those arguments are not always successful. Modern tape formats like LTO-8 can be accessed relatively quickly, and to make proportionality arguments, attorneys need to demonstrate why tape restoration is excessively burdensome.

Some key considerations:

● Legal teams may claim that data tape ediscovery creates undue costs and hardship. In Elkharwily v. Franciscan Health System, Case No. 3:15-cv-05579, the defendant successfully made that argument when citing the then-recently revised guidelines of the Federal Rule of Civil Procedure 26(b)(1) (FRCP) concerning proportionality.

● However, judges have broad discretion to determine whether proportionality applies. Certain tape formats cannot be reasonably described as creating an undue burden, particularly when specific data is needed from a small set of tapes.

● Courts can interpret FRCP guidance differently. Legal teams should operate under the assumption that ediscovery is not burdensome, even when arguing otherwise.

● Plaintiffs may voluntarily assume the costs of discovery. Courts may also compel them to undertake those expenses.

Ultimately, your legal team will require a tape restoration partner, even when making proportionality arguments. When a client is required to cover the expenses of ediscovery, attorneys have an interest in keeping costs low while providing the required data within a reasonable timeframe.

How should legal teams approach data tapes during e-discovery?

While data tape restoration can be expensive, costs — and time frame — can be managed, regardless of the exact format of the tapes or the nature of the data in question. As with other aspects of ediscovery, proper management requires an understanding of tape technology.

Avoid handling data tape restoration in-house.

Even in cases where an IT department has the necessary hardware to restore tape cartridges, they aren’t the most efficient resource. Tape restoration can take hundreds of man hours, particularly when working with legacy equipment. Older tape drives may malfunction, endangering tapes and data, and sourcing hardware for older formats can be costly.

Additionally, many IT employees have no experience with maintaining chain of custody reports, which can create issues during litigation. Operators will need to demonstrate clear, repeatable processes, and documentation can further expand the cost of data retrieval.

Professional tape migration firms can often restore tape in a fraction of the time of a well-equipped IT department. Your tape restoration partner can also convert data to newer formats, create indexes, and limit the time your team spends on discovery.

Collect information about the data tapes.

By providing accurate information about the data in question, your team can reduce the costs of e-discovery. Gather as much info as possible, including:

● Tape format (popular formats include LTO, DDS, DLT, AIT, and IBM 3592, but dozens of other formats are in common use.)

● The generation and size of the tapes.

● Information about the backup system, including operating system, data backup software name, and backup software version number.

● The organization’s backup frequency.

● The number of tape sets and total number of tapes.

● Where possible, the file format, names, and expected size of the necessary files.

You’ll also need to gather keys for encrypted media. Your tape restoration partner should be able to analyze this information and provide a detailed quote; make sure to explain that the restored data will be used in litigation, as tape restoration processes may need to be modified to ensure that the files are usable in a court of law.

Work with an experienced tape restoration partner.

An experienced tape migration firm can limit expenses substantially. At Total Data Migration, we maintain an extensive library of functional hardware for every tape generation, ensuring the fastest possible response with reasonable and predictable costs.

Our experts can assist with locating files, converting them (where necessary), and providing lists of relevant data. We perform data restoration in a secure, controlled setting, and our extensive experience can be vitally important when filing or responding to litigation.

To schedule a free consultation, send us an email or call (800) 460-7599 to speak with an expert.