Those Darn Backup Tapes

Unlike most of us who enjoyed our turkey dinners, counsel for the federal government had few reasons to celebrate Thanksgiving. In two reported decisions – one on each coast – federal district courts issued broadly worded orders requiring government defendants to preserve evidence. Both courts were responding to allegations in motions filed by public interest plaintiffs that loss or destruction of data was possible.

On the East Coast Judge Kennedy, adopting the report and recommendations of Magistrate Judge Facciola, ordered defendants to “preserve media, no matter how described, presently in their possession or under their custody or control, that were created with the intention of preserving data in the event of its inadvertent destruction”. In addition, the court ordered defendants to “preserve the media under conditions that will permit their eventual use, if necessary… .” Citizens for Responsibility and Ethics in Washington v. Executive Office of the President, Civ. No. 07-01707-HHK) (D.D.C. Nov. 12, 2007).

A few days earlier on the West Coast, Chief Judge Walker ordered defendants to “preserve all evidence that may be relevant to this action” and extended the preservation duty to evidence that might be in the hands of non-parties “who possess materials reasonably anticipated to be subject to discovery in this action”. Counsel were ordered to “exercise efforts to identify and notify such non-parties, including employees of corporate or institutional parties” and to submit to the court “under seal and pursuant to FRCP 11, a statement” that they had inquired of their clients that the routine “destruction, recycling, relocation, or mutation of such materials” had been halted or that duplicates or copies suitable for discovery had been made. In re National Security Agency Telecommunications Records Litigation, MDL 06-1791 (VRW) (N.D. Cal.Nov. 6, 2007).

CREW and NSA are both highly charged political cases, so it remains to be seen if in the ordinary civil case (a matter, as Judge Facciola described it during a hearing on the motion in CREW, involving “Suzie Smith against Joe Blow”), a court would enter an order with such far reaching and burdensome obligations. It is possible that the government’s reluctance in both matters to enter into stipulations regarding the preservation of evidence was a factor behind the decisions to enter the broadly worded preservation orders. Perhaps even more significantly, the CREW plaintiffs had alleged that e-mails had been deleted, and Judge Facciola found that “backup media are the only place where they may be and the obliteration of this backup media obviously threatens CREW with irreparable harm”.

Counsel and IT Professionals Take Note

Beyond the scope of the material to be preserved, the portions of these two orders that should cause counsel (both corporate and retained) and IT departments to beware are the obligations (1) to preserve media under conditions that would permit its eventual use; (2) to communicate with non-parties, including the employees of corporate or institutional parties and to inform them of the obligation to preserve information; and (3) to submit a statement by “[t]he most senior lawyer or lead trial counsel representing each party” pursuant to Rule 11 the preservation obligations “ha[d] been carried out”.

Motion Practice

One interesting side bar is the remarkably different routes taken by each of the plaintiffs to bring the preservation issue before the courts. The CREW plaintiffs moved for a temporary restraining order, assuming the burden of the familiar standard for the award of a preliminary injunction. The NSA plaintiffs filed a simple motion for an order prohibiting the alteration or destruction of evidence. (Go here and here, the web sites of CREW and the Electronic Frontier Foundation, respectively, to read papers filed in support of the motions by plaintiffs and the transcript of the hearing before Judge Facciola in CREW.)

What is a Backup Tape?

Unlike the broader order in NSA, the CREW preservation order was limited to backup media. Judge Kennedy’s order does not contain the interesting material found in Magistrate Judge Facciola’s “Report and Recommendation”, and even Judge Facciola’s Report necessarily omits the fascinating detail in the transcript of the hearing on CREW’s motion. For counsel and IT staff the most interesting discussion during the hearing was the complete inability of the participants to agree on a definition of a “backup tape” and whether the government had any. Judge Facciola’s first question after greeting the parties was

“As I understand it – this is what confuses me – is the problem at this point and the difference between you, the difference between backup tapes and disaster recovery backup tapes? And, if so, what is the difference between those two things, if there is a difference.”

More than 25 pages later, including an amble down the deeply worn path of the standards for issuance of a TRO and a brief recess to allow the parties to attempt to reach a stipulation, the judge still did not have an answer to his question. But it was not for lack of trying. In an effort to help the parties at least agree on what they were discussing, Judge Facciola described his understanding of the backup process in his courthouse. (In brief, the routine removal of tapes by a third party vendor to offsite storage with eventual overwriting of tapes.)

This attempt did not advance the argument between the parties. Counsel for plaintiff continued to refer to disks, CD’s and DVD’s as possible backup media. Judge Facciola seemed to limit his definition of backup media to magnetic tapes, saying at one point, “CDs and DVDs, I agree — I think we all agree, do not fall within the definition of disaster recovery tapes”. Plaintiff seemed to limit the request to “backup media … use[d] to preserve data that can be used forensically for disaster recovery”. It is possible that the parties were confusing Exchange server backup tapes and media used in disaster recovery sites to recover and resume critical operations. But the terminological confusion was never resolved.

Stipulating to the Preservation of Evidence May Not Be Enough

The government in both matters offered to provide a declaration under penalty of perjury that it “would preserve and maintain the backup tapes or disaster recovery tapes that were in existence ….” But it was unwilling to enter into any stipulation that could form the basis for an order.

Judge Facciola found although “stipulations entered into between parties can save time and money, there is no obligation upon a party to accept one” and that “[u]nlike a court order, a declaration is not punishable by contempt. In other words, without such an order destruction of the backup media would be without consequence”. (He did not discuss the court’s power to impose sanctions for the destruction of evidence.)

In his Report, making clear his understanding of the media at the center of the dispute, Judge Facciola quoted the definition of backup from the Sedona Conference Glossary for E-Discovery and Digital Information Management (May 2005 Version): “to create a copy of data as a precaution against the loss or damage of the original data. Many users backup their files, and most computer networks utilize automatic backup software to make regular copies of some or all of the data on the network”. He then recommended that the trial court issue an order “to prevent the destruction of backup media”. Judge Facciola’s draft order was adopted by the trial court and extended to media in the possession, custody or control and “under conditions that will permit their eventual use, if necessary … .”

Turning to NSA, although Chief Judge Walker did not expressly order the defendants to preserve evidence under conditions that would permit its eventual use, he ordered that “[p]reservation is be interpreted broadly to accomplish the goal of maintaining the integrity of all documents, data and tangible things reasonably anticipated to be subject to discovery … .”

In his view

[p]reservation includes taking reasonable steps to prevent the partial or full destruction, alteration, testing, deletion, shredding, incineration, wiping, relocation, migrating, theft, or mutation of such material, as well as negligent or intentional handling that would make material incomplete or inaccessible.

This would seem to be the same standard as CREW without language as direct.

Must Parties Notify Employees of Non-Parties With Access to Evidence That a Duty to Preserve Evidence Exists?

Judge Kennedy confirmed that the obligation to preserve evidence extended to information in the custody of a non-party but under the control of a party, for example backup tapes stored offsite in a facility owned by a non-party. Of more concern, however, is that Chief Judge Walker extended the preservation obligation to require an effort to communicate the existence of the obligation to non-parties: “[c]ounsel are under an obligation to exercise efforts to identify and notify such non-parties, including employees of corporate or institution parties”.

Conclusion

The orders issued in these two cases should be considered together as early signals of where courts may take the duty to preserve evidence in the face of allegations of potential spoliation.