Backup Tapes No Longer As Inaccessible

Backup tapes have long been regarded as an inaccessible format, and so the difficulty and cost of production of relevant data from such tapes may be shifted to the requesting party. The Tip of the Night for September 14, 2015 discussed Judge Scheindlin's seven factor test in Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003), to determine if the cost of production should be shifted from the producing party to the party demanding the production. This landmark decision marked backup tapes as an inaccessible form of digital media, and after the 2006 amendments to the Federal Rules of Civil Procedure, Rule 26(b) stated that ESI need not be produced if it was not reasonably accessible because of undue burden or cost.

The burden of searching backup tapes may be less for some companies than for others. As Daniel Garrie explains in Are Backup Tapes Accessible in EDiscovery? , companies which have implemented their own in-house backup tape system (rather than delegating the task to an outside vendor) may use it on a regular basis and be familiar enough with the tapes to ease the burden of locating needed data. Retrieval of data from backup tapes used to involve the following steps:

1. Consulting an inventory of the tapes.

2. Determining the software used to create the backup tapes.

3. Calculating how much data was stored on each tape.

4. Restoring and copying the data to an online system.

5. Indexing the data.

6. De-duping the data.

7. Searching through the data.

Recently backup tape systems have been developed which can be indexed without copying data off the tape and on to a network. Index Engines, a company which helps businesses manage their data centers, touts its ability to use automated software to search data tapes onsite without the use of the original software used to create the tapes.

.BIN files

Files with the extension .BIN are binary files that software can write data to. .BIN files are also often found on optical discs. These are disk images which are sector by sector copies of source files. A .BIN file is not simply the files and folder structure copied from the source storage medium, but a binary copy of it. It may operate with a cue file (with the extension .cue) that contains metadata about the files on the disc itself.

The Tip of the Night for November 19, 2019 discussed how files can be split into multiple .BIN files which can later be re-combined. Certain types of .BIN files can only be opened by the software which originally created them.

Programs like MagicISO and PowerISO can convert .BIN files to the more common .ISO format. An .ISO file is an archive file used to make a back-up copy of everything on an optical disc. .ISO files can be opened in file compression programs like WinZip or WinRAR.

A .BIN file can be mounted to a computer using a virtual drive software, such as WinCDEmu.

Keep in mind that .BIN files are a means to transfer data. When reviewing data for production, .BIN files should not be part of the end-product.

Evidence of How Bad Manual Document Review Is

The Tip of the Night for December 6, 2018 discussed a study by Herbert Roitblat, Anne Kershaw, and Patrick Oot on to what degree the results of manual document review performed by three teams of individuals corresponded. See, Document Categorization in Legal Electronic Discovery:Computer Classification vs. Manual Review, 61(1) J. Assoc. Inf. Sci. Technol. 70–80 (2010). A law review article published by Maura Grossman and Gordon Cormack (the well-known authors of a glossary on TAR terms, as mentioned in the Tip of the Night for June 4, 2015) includes a table which does a good job of illustrating the disparity between the content of each review teams' results.

See, Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, 17 Rich. J.L. & Tech 11, 14 (2011). Available at: http://scholarship.richmond.edu/jolt/vol17/iss3/5 . The review set consisted of 5,000 documents. Team A's production and the original production only shared 16.3% of the total 'responsive' documents. Team B and the original production had a 15.8% overlap. Team A and Team B only had 28.1% of their relevant documents in common.

In the same article, the authors cite the results of a study by the researcher Ellen Voorhees of three teams of human document assessors on a set of more than 13,000 documents.

Id. at 13. Each team's results only corresponded by between 40-50%.

Good evidence to show that manual document review cannot be relied upon to locate all of the relevant documents in a data set.