The Medium is Just Part of the Message

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11Jan2008

The Medium is Just Part of the Message

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By Craig Ball

data centerDoes the determination whether ESI is reasonably accessible turn on the type of medium which stores it? Rules of thumb mistakenly suggest that information on tapes is presumed inaccessible while data on up-and-running servers is accessible per se. Would that the lines were drawn so bright.

Certainly, the medium which holds data influences the accessibility assessment, but data on ‘readily accessible’ hard drives might be a Gordian knot of unstructured information stubbornly resistant to extraction whereas data on tape proves surprisingly easy to locate and extract. Notwithstanding the helpful observations of the Zubulake opinion, you can’t look at the medium of storage alone and categorically conclude that ESI is reasonably accessible or inaccessible. You’ve got to consider the totality of burden and cost.

A worthwhile read on this point is the decision in W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007), flagged by the ever-vigilant webmeisters at K&L Gates. Though missing an opportunity to debunk strictly media-based accessibility analyses, I admire that that the court looked beyond the medium of storage to the actual burden and cost. More, the court divined that the convoluted structure of the database was the principal contributor to discovery burden, and so, despite finding the ESI to be not reasonably accessible, imposed no conditions upon production. Notably, after finding good cause to compel production, the court didn’t shift any costs of production to the requesting party.

The media employed to hold ESI and the tools and applications used to access that media are ever-changing, such that there aren’t any “safe” assumptions about accessibility. Careful judges won’t accept categorical assessments of accessibility based on medium of storage alone. In each case counsel must assess and demonstrate, “How hard will it really be, and how much will it cost?”

About the Author
Craig Ball is a Board Certified trial lawyer, certified computer forensic examiner, and electronic evidence expert. After decades trying lawsuits, Craig now limits his practice solely to serving as a court-appointed special master and consultant in computer forensics and electronic discovery and to publishing and lecturing on computer forensics, emerging technologies, digital persuasion, and electronic discovery. Craig’s award-winning e-discovery column, “Ball in Your Court,” appears in Law Technology News. He also is a regular contributing author of EDD Update.

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