Kahn Consulting’s Electronic Discovery Blog recently summarized the case of Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 97554 (D.N.J. Oct. 20, 2009). What is missed by both Kahn’s blog entry and the deciding parties in this case is that the discovery of data from 2,500 tapes for $1.5M is grossly overpriced.
There are a lot of assumptions in this case. It assumes all 2,500 tapes contain email. It assumes all email is unique and no duplicates exist on these backup tapes. It assumes all 2,500 tapes contain relevant custodian mailboxes. It assumes you will pay $600 per tape. Based on these assumptions, then yes – this would be a $1.5 million dollar collection project that would take weeks of manual restoration work.
Enter with new technology and all these assumptions go out the window. Technology identifies which tapes have email, what email is duplicate, and what is in a custodian mailbox, all without ever restoring a single byte, at much less than $600 per tape. In fact, Index Engines partners are processing this scale of job in the range of 90% less than $1.5M. The dynamics of backup tapes discovery and collection has definitely changed.
Legal teams try to paint worst case scenarios so they won’t have to produce data from backup tapes – that’s their job. However the courts are becoming more educated on technology, such as Index Engines, that make getting responsive data from tape much less costly and burdensome. The burden argument is becoming less and less successful as time goes on. And decisions such as this one will be few and far between as the industry becomes more educated on tape indexing technology.