Sanctions for Back-Up Tapes & Reasonableness in Preservation

The Plaintiffs in Gaalla v. Citizens Med. Ctr., brought a sanctions motion for alleged spoliation of email stored on back-up tapes.  The parties and Court had never discussed the issue of back-up tapes until the Plaintiffs’ spoliation motion.  Gaalla v. Citizens Med. Ctr., 2011 U.S. Dist. LEXIS 57317, 2-3 (S.D. Tex. May 27, 2011).

The Plaintiffs’ motion sought everything up to the nuclear sanction of a default judgment for the alleged spoliation.  Gaalla, at *2.

The genesis of the Plaintiffs’ sanctions motion was the argument that the Defendants had a duty to preserve their “back-up” tapes, which were overwritten on a 7 or 14 day cycle after the filing of the lawsuit.  Id.

The Plaintiff elaborated that even if the deletion of the back-up tapes did not violate the duty to preserve, the alleged failure, combined with a “failure” to take snapshots of certain custodian email accounts, combined with “evidence” that some custodians deleted email messages at some point undefined point in the past, warranted harsh sanctions.  Gaalla, at *2.

The Defendants denied any violations of their duty to preserve, arguing that disaster recovery systems are “rarely” preserved after litigation begins.  Gaalla, at *3. Moreover, the Defendants had issued a litigation hold after the filing of the lawsuit and had taken “snapshots” of relevant email accounts.  Id.

The Court found it “doubtful” that the Defendants violated their duty to preserve.  As the Court explained, citing the “old” Zubulake standard:

[A] “litigation hold does not apply to inaccessible backup tapes (e.g., those typically maintained solely for the purpose of disaster recovery), which may continue to be recycled on the schedule set forth in the company’s policy. On the other hand, if backup tapes are accessible (i.e., actively used for information retrieval), then such tapes would likely be subject to the litigation hold. However, it does make sense to create one exception to this general rule. If a company can identify where particular employee documents are stored on backup tapes, then the tapes storing the documents of “key players” to the existing or threatened litigation should be preserved if the information contained on those tapes is not otherwise available. This exception applies to all backup tapes.”

Gaalla, at *4-5, citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003).

The Court further held that even if the Defendants had violated their duty to preserve, there was no evidence of “bad faith” on their part, a requirement for spoliation sanctions.  Gaalla, at *5.  As the Court explained, the Defendants did enact a litigation hold and preserved evidence, including back-up tapes that could be searched.  Gaalla, at *6.

The Court held the Defendants had taken “reasonable preservation” in the context of the litigation with their litigation hold and preservation actions.  Gaalla, at *6.  Moreover, the Plaintiffs speculation that the Defendants deleted email messages was not evidence to warrant sanctions.  Gaalla, at *6-7.

However, the Court did issue additional preservation instructions:

(1) From May 25, 2011 until the Court orders otherwise, the e-mail accounts of all persons designated by Plaintiffs shall be retained through a “journaling” process on a regular basis (as described during the hearing), such that all e-mails are retained indefinitely, and not deleted permanently;

(2) From May 25, 2011 until the Court orders otherwise, the “disaster recovery first of month” e-mail files (available from November 1, 2009 to November 1, 2010) shall be preserved in their current state. Plaintiffs’ expert shall be allowed to search those emails, during normal business hours at the expert’s convenience. The parties shall agree on the e-mail accounts to be searched on the “disaster recovery first of month” system.

(3) Defendant shall search the e-mail accounts of three specific custodians and submit the results to Plaintiffs no later than June 4, 2011.

(4) The parties shall agree on a preservation order with respect to the e-mails of CMC employees identified by Plaintiff, and submit that order to the Court.

(5) Defendant shall pay the costs of the searches described above, subject to reconsideration based upon the results of this search. Plaintiffs, however, shall pay costs associated with their own expert. 

Gaalla, at *7-8

Bow Tie Thoughts

I believe the dogmatic view that back-up tapes are automatically inaccessible is obsolete.  Technology such as Index Engines allows for the affordable searching of this once “inaccessible” technology in 2003 or 2004.  Our challenge is it takes time for such products to be used by parties and argued before a judge.

This opinion is very refreshing because the Court made it very clear it relied on the principles that preservation should be “reasonable” and “proportional.”  There is no requirement that every hard drive in a lawsuit needs a total forensic image, but “whether what was done-or not done-was proportional to [the case] and consistent with clearly established applicable standards.” Gaalla, at *6, citing Rimkus, 688 F. Supp. 2d at 613.

The issue of back-up tapes and the collection of electronically stored information is best done in the meet and confer and not in a motion battle.  It is advisable that parties develop a data map so they understand where their data is located before discussing collection with their opposing party.  Additionally, attending the meet and confer with experts who can discuss the ways to collect such data can save time and cut the cost of slugging out preservation issues before the court.

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