Data Accessibility Analysis
A documented accessibility analysis is essential to backup a litigant or investigator’s determination that data is inaccessible: failure to maintain such documentation can be extremely costly to both you and your client.The Federal Rules of Civil Procedure require a thorough accessibility assessment in order to successfully claim that data is inaccessible under the FRCP. Rule 26(b)(2)(B) prevents discovery from inaccessible sources only where the requesting party meets its evidentiary burden of showing good cause for the discovery, subject to the limitations of Rule 26(b)(2)(C).
The Rule means that a party is not required to respond to requests for inaccessible electronic information and produce at any cost. Rule 26(b)(2)(B) of the Federal Rules of Civil Procedure provides that 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. (Available at http://www.law.cornell.edu/rules/frcp/Rule26.htm). However, in KnifeSource, LLC v. Wachovia Bank, N.A., 2007 WL 2326892 (D.S.C. Aug. 10, 2007) the District Court recognized that the unsubstantiated statement of inaccessibility is insufficient. The party claiming that data is inaccessible bears the burden of demonstrating the information is not reasonably accessible.
Six common types of electronic media ranging from the most accessible to the least accessible include:
- Active online data, usually magnetic disks, used in the most active stages of the electronic record’s life, such as computer hard drives (active data);
- Removable magnetic and optical media (active data);
- Cell phones, i-pods, Personal Digital Assistants (PDAs) (active data);
- Offline storage/archives used for disaster recovery (inactive data);
- Backup tapes or compressed data requiring sequential access (generally, backup tapes are not organized for retrieval of individual documents) (inactive data); and
- Erased, fragmented or damaged data that are only retrievable using sophisticated forensic tools and professionals (inactive data).
The analysis of accessibility depends on the software application used to store and/or archive the data, the operating system, the presence or absence of encryption, the data format, existing records (i.e. an index of the media content), age, and storage method. Courts and industry guidelines have tried to classify data into two categories active and inactive the later being (usually) considered inaccessible. Sedona Principle 8 provides that: “The primary source of electronically stored information for production should be active data and information. Resort to disaster recovery backup tapes and other sources of electronically stored information that are not reasonably accessible require the requesting party to demonstrate need and relevance that outweigh the costs and burdens of retrieving and processing the electronically stored information from such sources, including the disruption of business and information management activities.” See Redgrave, Jonathan; The Sedona Principles (Second Edition) Addressing Electronic Document Production (2007 The Sedona Conference) (Available at http://www.thesedonaconference.org/dltForm?did=TSC_PRINCP_2nd_ed_607.pdf).
Commentary to this principle states:
Sedona Principle 8, as revised, represents a practical approach to assessing production obligations involving electronically stored information. Active data is typically stored on local hard drives, networked servers, and distributed devices or offline archival sources from which information can be accessed without a special restoration. . . .The stored concept helps differentiate between information that is discoverable per se and that which must be transmuted into a different from for production purposes. See Allman, Thomas, The Sedona Principles after the Federal Amendments: The Second Edition, pp. 4-5 (August 17, 2007)(Internal Citation Omitted)(available at . http://www.thesedonaconference.org/dltForm?did=2007SummaryofSedonaPrinciples2ndEditionAug17assentforWG1.pdf).
Active data is information residing on the hard drives or optical drives of computer systems that is readily visible to the operating system and/or application software with which it was created and is immediately accessible to users without deletion, modification or reconstruction. Inactive data makes up the lion-share of information stored. Inactive data is managed and stored in a hierarchy of lower-cost storage mediums. However, such methods of storage are extremely expensive to restore, access, search, and review for production.
In many instances, the active and inactive distinction is inadequate to evaluate the accessibility/ inaccessibility of data. For example. where a party seeks preservation of highly transient data- one common example is live memory (Random Access Memory) of a computer. A party may ordered to produce live memory captures in situations where this information is essential for finding encryption keys, the identity of users (when the information is not otherwise logged), etc. In these situations the producing party has usually intentionally configured the system such that certain relevant data is not stored on more readily available data sources.
Given the transient nature of Random Access Memory (RAM) this data must be acquired first before any-other forensic acquisition of a given system (e.g. imaging the hard-drive). See Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, Computer Crime and Intellectual Property Section Criminal Division (United States Department of Justice, July 2002)(avaliable at www.cybercrime.gov/s&smanual2002.htm) If a forensic examiner needs to acquire RAM data from an information system, pda, or other electronic device, it is essential that the power must be constantly maintained. (This procedure is contrary to those followed by many commercial forensic examiners.)
Rule 26(c) highlights three key factors which the courts consider when evaluating whether a given data request is reasonably accessible:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. (Available at http://www.law.cornell.edu/rules/frcp/Rule26.htm).
The Federal Rules of Civil Procedure initially relieve a party from producing electronically stored information that is not reasonably accessible because of undue burden and cost. However, a party who has failed to preserve accessible information without cause cannot claim inaccessibility of the only electronically stored information that remains. See Disability Rights Council of Greater Washington v. Washington Metropolitan Transit Authority, 242 F.R.D. 139, p.9 (D.D.C. 2007)(Court Orders Defendant to Restore Backup Tapes Based on Good Cause Showing). Where a party fails to due a diligence investigation into alternative avenues available to acquire relevant ESI– a party may be compelled to produce data that is otherwise inaccessible under FRCP. In Peskoff v. Faber, 240 F.R.D. 26, 67 Fed.R.Serv.3d 760(D.D.C.,2007), the District Court held that inaccessibility analysis was inappropriate, where the objecting failed to do additional searches to ensure a more comprehensive analysis of available electronic data. The Court recognized that the producing party has the obligation to search available electronic systems for the information demanded.
In another recent case, City of Seattle v. Prof’l Basketball Club, LLC, 2008 WL 539809 (W.D. Wash. Feb. 25, 2008), the District Court similarly held that a moving parties bald assertion that discovery will be burdensome is insufficient in light of Fed. R. Civ. P. 26(b) (2)(B). Accordingly, a documented accessibility analysis is essential to justify a litigant or investigator’s determination that data is inaccessible: failure to maintain such documentation can be extremely costly to both you and your client, subjecting both you and your client to the second guessing of the trial court