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Additional info for e-Discovery For Dummies

Example text

If disaster recovery is needed, the entire tape or disk is loaded. ✓ Backup tapes, commonly using data compression: Backup tapes are sequential access media. Like ESI stored for disaster recovery, the data is not organized for retrieving individual files. Retrieval typically requires restoring contents of the entire tape. Adding to the challenge and cost is the need to reverse any compression that was used to fit more bytes of data on the disks. The discovery of ESI from disaster recovery backup tapes and other sources that are not reasonably accessible requires proof that their relevance outweighs their retrieval and processing costs.

Stated another way, the burden associated with locating that e-mail is ✓ Lowest when the e-mail is stored on the e-mail server (a server is a hard drive) ✓ Highest when the e-mail has been moved to backup media that’s offline ✓ A moot point when it has been destroyed through the overwrite process FRCP and Federal Rules of Evidence are general guidelines, not detailed processes. So it’s up to the judges to determine whether ESI is reasonably accessible. Judges recognize that e-discovery burdens and costs depend on the ESI’s accessibility, which changes as it ages.

Clairvoyance would be helpful because the scope of what needs to be preserved and when are not clear. Accept that it’s difficult under the best of circumstances to know when your duty to preserve has triggered or what you need to preserve. Consult with your in-house counsel on when your duty to preserve ESI kicks in. ✓ Day 1: Complaint served. You’re on solid ground here because there’s no mistaking that a lawsuit is in play. This action starts a clock that counts off days. ✓ By Day 99: Meet-and-confer session.

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