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Practice Tip: The Dilemma of Backup Tapes in Mass Tort Litigation
Parties involved in litigation have an obligation to preserve relevant information in existence at the time the duty to preserve attaches and must preserve relevant information created thereafter. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (Zubulake IV). Developing a comprehensive preservation plan to meet these obligations is both critical and difficult. The analysis of whether particular data need to be preserved involves murky, and often contradictory, legal standards.
For companies involved in mass tort litigation, the question of whether a reasonable preservation plan includes an obligation to expend millions of dollars to preserve backup tapes is a particularly vexing issue. There is no definitive authority establishing the steps companies in mass tort litigation should undertake to fulfill their preservation obligations. Rather, corporate defendants must look to myriad cases arising out of contexts wholly different from the complex world of mass torts. In fact, the leading cases, Zubulake IV and Zubulake V, 229 F.R.D. 422 (S.D.N.Y. 2004) arise from small employment-discrimination litigation involving at most 10 key participants.
Companies involved in mass tort litigation thus face a Hobson's choice when it comes to preserving backup tapes. There are real questions of whether the preservation obligations set forth by the Zubulake decisions make sense, or are reasonable, in mass tort litigation. On the other hand, the potential consequences of not preserving backup tapes can also be extremely costly. See, e.g., United States v. Philip Morris, 327 F.Supp. 2d 21 (D.D.C. 2004) (imposing monetary sanctions against Philip Morris of $2.75 million for failure to preserve e-mails stored on backups); Keir v. Unumprovident Corp., No. 02 Civ. 8781, 2003 WL 21997747 (S.D.N.Y. Aug. 22, 2003) (finding company liable for spoliation of evidence for failure to preserve backup tapes).
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