• And While You're Taking Out the E-Garbage... Implementing Procedures for Non-Current Backup Tapes
  • March 23, 2007 | Authors: Robert D. Owen; Wendy Butler Curtis; Emily Frangos; Sarah Warlick; Keith M. Angle
  • Law Firms: Fulbright & Jaworski L.L.P. - New York Office ; Fulbright & Jaworski L.L.P. - Washington Office ; Fulbright & Jaworski L.L.P. - New York Office ; Fulbright & Jaworski L.L.P. - Washington Office ; Fulbright & Jaworski L.L.P. - Houston Office
  • The proposed amendments to the Federal Rules, which go into effect December 1, 2006, will dramatically change the way companies create and store backup tapes. To prepare for this change, many companies have already begun to dispose of useless "e-garbage," or non-current, backup tapes. Disposing of these tapes is crucial given the dramatic implications that new Rule 26(b)(2) has for discovery. After December 1, companies will be required to disclose the existence and extent of their backup tapes to the court and to opposing parties where they contain "potentially responsive" electronically stored information. They may also be required to search or sample otherwise inaccessible backup tapes pursuant to court order if an opposing party can show good cause. Owing to the excessive costs associated with restoration and attorney review of backup tapes, which can contain millions of typewritten pages each, companies should do everything possible, keeping in mind any pre-existing preservation obligations, to limit the number of backup tapes they have both before and after December 1.