Rulings based on the new Federal Rules of Civil Procedure are starting to come in. While many companies are delaying updates to their archiving and backup strategies, some companies are being hit hard.
Law.com's Legal Technology publication says that more than 50 cases have come in, with some inconsistent results. But, you can't count on which side a ruling will fall. One of the two featured in the article was Best Buy Stores v Developers Diversified Realty Corp. Here is an excerpt from the article:
"(The defendants) had to restore and review e-mails and electronic documents from 345 backup tapes in less than a month at an estimated cost of nearly $500,000, not including attorney fees for review of the documents for privilege and responsiveness."
The article listed a number of important lessons learned. These are direct quotes:
Do not assume. The Best Buy case is a startling reminder that there is no automatic designation of backup tapes or other difficult-to-access sources as "not reasonably accessible" data under amended Rule 26(b)(2). ... (The producing parties) mistakenly assumed (Magistrate Judge Jeanne J.) Graham would not order the production of data from hundreds of backup tapes.
The producing parties also mistakenly assumed they would have more time to meet and confer on these issues with opposing counsel. Their attempt to fix the problem after Graham had already ruled by offering new and improved evidence was a day late and a dollar short.
- Be prepared and develop a protocol for handling e-discovery issues. One of the main goals of the federal rule amendments is to focus attention on e-discovery issues at the beginning of litigation. Had the producing parties in Best Buy had a handle on their backup tape procedures prior to this litigation and had they thought about what proof they would need in the event of a dispute, they would not have been playing catch-up. Indeed, the dispute might never have arisen.
Subscribe by Email
