Electronic Discovery Law

Posted at 9:40 AM on December 15, 2004 by K&L Gates

Court Determines that Additional Searches Are Largely Unwarranted Based on Test-run of Backup Tape Restoration

McPeek v. Ashcroft, 212 F.R.D. 33 (D.D.C. 2003)
After initial search of certain backup tapes was conducted, the parties offered the court differing views of the success of the search and the need for additional searches.

The court reiterated its opinion that whether a search of backup tapes is appropriate involves an assessment of the likelihood that they will contain data (word processing documents and emails) that will produce information that is relevant to the lawsuit. It stated that, "[g]iven the truly random nature of the collection of data on backup tapes, only two approaches suggest themselves." 212 F.R.D. at 35. The first would be to search all tapes insofar as they exist for the periods of time that plaintiff seeks; the second would be to search backup tapes generated contemporaneously with the events complained of. In choosing the latter approach, the court stated:

The likelihood of finding relevant data has to be a function of the application of the common sense principle that people generate data referring to an event, whether e-mail or word processing documents, contemporaneous with that event, using the word 'contemporaneous' as a rough guide. Conversely, it is unlikely that people, working in an office, generate data about an event that is not contemporaneous unless they have been charged with the responsibility to investigate that event or create some form of history about it.

Id. Applying these principles, the court determined that only one tape warranted a further search. Id. at 36.

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