General response to Maureen's responses: I would agree to a degree.  Some --
and I do qualify that as some -- judges are becoming more adept at ESI
production and the result is in line the intent of the 2006 amendments
related to ESI in FRCP.  More often it's the magistrate judges who are doing
the heavy lifting for ESI as they feel the operational burden more.  Also,
electronic discovery is improving in terms of being able to search out
matches and deduplicate those matches.  

That proficiency though isn't the whole picture.  First backup tapes is a
fairly generic description of a multitude of media though many are likely
serial magnetic tape technology while others may be magnetic disk, optical
disk, solid state, etc.  And there are various technologies which read these
backup media, some obsolescent or functionally obsolescent.  Certainly this
beings into scope accessibility (or inaccessibility) as an ESI consideration
or argument.  So when it comes to backup media depending on the nature of
the production there may a little or a lot of complexity to what is being
searched.  This creates costs for several reasons.

Also, the volume of backup media history could possibly be significant. The
time frame of what's relevant in litigation may or may not narrow this, but
this is another consideration.

Finally, simply completing searches and even efficient deduplicating is not
the same as review of deduped search results for relevancy prior to actual
production.  This is often the most expensive part.

So it's not quite as simple as saying search technology is better, judges
are more adept (many are clearly not yet and it's hit and miss) so backup
tapes aren't such an issue to sweat any longer.

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