Discovery of Data from Backup Tapes: Managing Risks and Shifting Costs

Originally published June 30, 2009

Keywords: Electronic discovery, backup tapes, discovery requests, discovery costs, Federal Rules of Civil Procedure, Rule 26(b)2), cost-shifting, electronically stored information, ESI

Scenario:

A company is sued by a class of investors.  The investors issue a discovery request for a large number of data files that are only tangentially related to their claim.  The company is sure the requested materials do not indicate liability, but it fears the substantial cost of digging through mountains of backup tapes and archived storage media to demonstrate this fact.

Allocation of Discovery Costs

The US Supreme Court has long held that in federal litigation, "the responding party must bear the expense of complying with discovery requests."   Several provisions of the Federal Rules of Civil Procedure  do limit the ability to abuse this rule by issuing broad discovery requests intended to increase an adversary's litigation costs.