Crane on Law by James Crane

In National Union Fire Ins. Co. v. Clearwater Ins. Co., the Southern District Court of New York held that backup tapes are not reasonably accessible within the meaning of Fed. R. Civ. P. 26(b)(2) when the cost was $80,000. The requesting party was trying to locate emails related to a settlement and the tapes were for a time period 7 – 22 months after the settlement, so the court reasoned that the potential benefits for the search were outweighed by the cost. (July 2007)

In Oxford House, Inc. v. City of Topeka, the U.S. District Court of Kansas denied a request to search backup tapes that would have cost $100,000 when the potentially responsive emails were likely to have already been overwritten and no longer recoverable. (April 2007)

The U.S. District Court of New Jersey denied a stay pending review of discovery orders when the party asserted the orders would require restoration and review of about 14 billion documents because the assertion was made “on purely conclusory terms, with utterly no explanation.” The lesson is that parties should be prepared to back up all of their assertions regarding accessibility. Get the affidavits ready even before the meet and confer. (Wachtel v. Health Net, Inc.) (April 2007)