The January 2005 issue of ACC Docket contains an interview with Judge
Scheindlin ( Zubulake opinions). The following comes from that
interview (This issue is available only to ACCA Association of
Corporate Counsel members, check with your Legal department to see who
is  a member. the website is http://www.acca.com/)

<snip>
[Ellsworth] In your last answer, Judge, you mentioned backup tapes.
Requesting parties tend to consider backup tapoes to be the mother
lode, while producing parties consider them to be the equivalent of a
vast garbage landfill. Which end of the spectrum are you closer to,
and why? And if you say it depends, on what does it depend, and how is
a company to know in advance of a particular case?

[JUDGE SCHEINDLIN]: As you cleverly anticipated,
my answer is: It depends! The value of a backup tape
is only the value of the data it contains.
In principle, businesses usually keep backup tapes
for disaster recovery, and a company should discard
or recycle one backup tape once it has a more recent
backup tape. If companies scrupulously followed
that protocol, chances are that the contents of the
backup tape would closely mirror the contents of
the company's active files, and restoration of the single
backup tape wouldn't be worthwhile.

The problem is that companies don't follow their
own protocols. A document retention policy may call
for tapes to be recycled weekly or monthly, when in
fact people within the company who can't bear to
destroy anything are keeping years' and years' worth
of backup tapes. In those cases, backup tapes contain
long-deleted files and can be the treasure chest or the
mother lode that you referred to for the requesting
party. The lesson, of course, is that it does you no
good to have a detailed document retention policy if
it isn't followed throughout the company.
So, I think the answer is that these backup tapes
should not be kept longer than needed. If that were
done throughout business, your question would
become history.

[ELLSWORTH]: I take your point that the best thing
is for a company not to retain unnecessary backups.
But in the common situation in which a company
has kept backup tapes for many years, how do you
address that huge volume of inaccessible data?

[JUDGE SCHEINDLIN]: If information is available,
under our rules, it is discoverable if it is relevant.
But the producing party then has a right to argue
that the cost of producing it, relative to the litigation,
is so disproportionate that the court should not
require it to be produced. Or a producing party
might argue that there is another way to get at the
information. It's all about that proportionality rule I
mentioned earlier in 26(b)(2). So it's hard to know
how the balance is going to come out. In some cases
I think that discovery of backup tapes shouldn't be
allowed. It's just unfair, given the type of case and
the amount in controversy, to ask a party to go
through an expense that is greater than the value of
the case. But in a different case, if it is shown that
what is sought is relevant to the litigation, and the
case warrants that kind of expense and the company
kept that material, I can't take it out of bounds. The
Federal Rules of Civil Procedure tell me what to do.
They guide me, and I follow them.
<snip>

Peterk

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