Does the Pension Committee Amended Opinion and Order Go Far Enough?

Matthew Nelson, Esq., EMC eDiscovery Expert

The Pension Committee Blog Series – Part Two – Backup Tapes

In my previous post, I discussed whether Footnote 99 of Judge Scheindlin’s Pension Committee Amended Opinion and Order went far enough in clarifying challenges related to backup tape preservation and search.  Footnote 99 is tricky because it both adds clarity and creates challenges at the same time.  The footnote states that there is not a duty to preserve backup tapes unless the tapes are the sole source of relevant information. Pension Committee of the Univ. of Montreal Pension Plan, et al., v. Banc of America Securities, LLC, et al. at 42.

Unfortunately, this apparent bright line rule has some practical limitations because parties often do not know what information is contained on backup tapes since tapes are often outdated, voluminous, or otherwise not reasonably accessible due to undue burden or cost.  Therefore, destroying or overwriting backup tapes in the midst of litigation often results in the possibility of destroying the “sole source of relevant information” which could lead to spoliation sanctions.

To avoid the risk of sanctions, parties should strongly consider preserving the tapes in question if it is not clear whether the tapes are the sole source of relevant information.  Ideally, parties can stipulate during the Rule 26(f) meet and confer conference that at least some backup tapes with unknown content need not be preserved or searched and that agreement can be incorporated into the Rule 16(b) scheduling order.  If the parties are unwilling to stipulate regarding tape production, then a responding party could seek a protective order under Rule 26(b)(2)(B) by showing that their backup tapes are not reasonably accessible because of undue burden or cost.  However, does a successful showing of “undue burden or cost” alone mean a protective order will be granted to the responding party and that tape data will not need to be produced?

Join our discussion and make your opinion(s) known, as we probe the case’s lingering questions and foreboding implications in The Pension Committee Blog Series.