Technology moves inaccessible to accessible
Under the FRCP, parties may not have to search "inaccessible," or "not reasonably accessible" data to respond to discovery requests. To support the inaccessiblity of data, lawyers often rely on the fact that data resides on backup tapes solely designed to recover from natural disasters; or that the data recover is unduly costly and a potentially unfair burden to bear based on the information requested. Indeed, sequestering a haystack to look for a needle may indeed be unreasonable; unless of course you have a metal detector.
Like haystacks, needles, and metal detectors, the inaccessible argument regarding data residing on backup tapes wanes with new technology. Last year, I wrote about how easy it is to index data on tape with Index Engine's technology and make it available to discovery queries. That same technology is now coming to theatres dedicated to e-discovery, such as CommVault.
CommVault announced that it entered in to a strategic partnership with Index Engines to assist customers in their e-discovery requirements with data on tape. Migrating data from and complex legacy tape systems or even current tape library systems can be expensive and laborious. CommVault's service aims to cut the costs of migrating tape to disk and give their customers options, and confidence, in switching to more efficient storage technology. CommVault is not alone.
RenewData has announced a single-pass technology to process backup tapes to support its own clients with discovery and risk management requirements. Single-pass technology allows RenewData clients to gain visibility into tape libraries and access discreet data that may be striped across multiple tapes.
CommVault, Index Engines, and RenewData initiatives show that technology can move the "inaccessible" argument in e-discovery toward accessibility. So do not be surprised when a magistrate tells you to access backup tapes for data; move to your next argument on cost shifting and lean toward your opponent's side of the room.