The recent amendments to the Federal Rules of Civil Procedure are claimed, by the popular literature, to place new burdens on American business. But wait! Rule 26(b)(2)(B) provides
(B) A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
In essence, you don’t have to produce data that you can show is too difficult or too expensive to find, unless such data is really, really important. I’m not sure what that means, but it presumably includes data stored on standard computer tape backups, at Iron Mountain or whatever.
The folks at Index Engines, claim that reconstructing a system so that you can read the typical tape and recreate the database — better to search for the responsive documents that may be on the tape — is an expensive proposition. And if you aren’t certain what documents are on which tapes, and don’t remember which brand and version of backup software you used, more so. (Why your backup system should be as poorly documented as my “collection” of VHS tapes is another question, but the Index Engines folks assure me that sort of things happens.) Presumably, such disorganization would tend towards making the documents that may be on such tapes undiscoverable under the new 26(b)(2)(B).
The folks at Index Engines claim they have an inexpensive and efficient way to organize the disorganized and dramatically cut restoration and search costs.
Instead of recreating a system to restore the index, Index Engines sells an “appliance” — a high-powered AMD-based PC with four to eight Gigabytes of memory and lots of hard disk storage — that reads a tape, whatever the software that created it, and creates an index of the words and meta-data for each record on the tape. Once the index is available, searching is an almost trivial matter. Using proprietary query-building software, you can search the index for relevant documents — all e-mail from Jones to Smith between January 1, 2003 and December 31, 2005 containing the word “Iraq” — and pull a results list in a matter of seconds. If you find a relevant document, the software can reconstruct the words in the document, although the reconstruction may lack spacing, fonts, pagination and so forth, and generally look terrible. (If you want a real copy of the document, you’ll have to recreate your system, with the aforementioned costs attendant on such a procedure, or find a service bureau that has such a system. Better reconstruction capability directly from the Index Engine index is coming.)
The developer will sell you the appliance and license the software for $29,000 and up depending on the volume of records you want to index, or you will soon be able to use a third party service bureau to handle the tapes and store the data,
If you decide to use this stuff, please leave a comment or send me a note.
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