The courts are starting to understand the benefits of using Index Engines in the collection of ESI, especially from backup tapes. In the recent case, Goshawk Dedicated and Kite Dedicated v American Viatical (Case No. 1:05-CV-2343-RWS Document 506 filed 12/08/2009) the judge issued a report on the production of ESI in support of the case. The original collection was to be focused on approximately 1TB of online data, however the decision was made to perform this collection on backup tape. The reasons given were, “backup tapes (a) would provide a more direct and economical route to responsive ESI vs. searching the online data. (b) would entail considerably less business disruption. The court also went on to direct the use of Index Engines for the collection of ESI for this case.
The fact that courts are now mandating the use of Index Engines for collection of ESI from backup tapes versus online data show how far we have come with respect to the inaccessibility argument. In the past many cases have argued backup tapes are burdensome. Now we see cases where tapes are not cited as burdensome, but are in fact determined to be less burdensome and more economical when compared to online ESI collection.