From John Jablonski, partner, Goldberg Segalla*:
Do you need to preserve disaster recovery backup tapes that contain relevant ESI? Guidance from commentators and case law is mixed. The Federal Rules of Civil Procedure are silent on whether disaster recovery backup tapes need to be preserved when implementing a litigation hold. What we know, however, is that all relevant ESI must be preserved. Relevant ESI can be contained on backup tapes that a party deems not reasonably accessible. See FRCP 26(b)(2)(B). Assuming backup tapes are preserved and identified as not reasonably accessible, will the tapes ever be subject to discovery? In short, yes as demonstrated by Kilpatrick v. Breg, Inc., 2009 WL 1764829 (S.D. Fla. June 22, 2009).
In Kilpatrick the court ordered production of disaster recovery backup tapes, despite defendant's argument that ESI on the tapes is not reasonably accessible. While the case does not address the question of preservation directly, it stands as a warning. Defendant repeatedly represented that active ESI met its discovery burden. Defendant also advised that additional relevant ESI might be contained on backup tapes, designated as not reasonably accessible because they were maintained for disaster recovery purposes only. Plaintiff was not buying it and moved to compel production of the backup tapes. The court agreed that the ESI produced so far seemed to have some holes and compelled limited production from the backup tapes.