In Omnicare v. Mariner Health Care Management Co., 2009 Del. Ch. LEXIS 95 (Ct. of Chancery Del. May 29, 2009), Judge John W. Noble denied plaintiff's motion to compel production emails located on backup tapes ruling that defendant must first produce all relevant emails on active stores.

Plaintiff, a large pharmaceutical supplier, brought this action related to a billing dispute with defendants, an equally large nursing home operator.  In discovery, each party sought a massive amount of electronic data from the other.  Pursuant to defendants' document retention policy all emails were automatically deleted after approximately three years, but remained on backup tapes. Plaintiff moved to compel production of email that resided on defendants' backup tape system.   The estimated cost of backup tape restoration was between $22,000 and $40,000.

The court, citing FRCP 26(b)(2)(B) and Zubulake v. UBS Warburg LLC 216 F.R.D. 280, 284-91 (S.D.N.Y. 2003), held that defendants had not met their burden of establishing that the emails were not reasonably accessible.  "Simply because the ESI is now contained on backup tapes instead of in active stores does not necessarily render it not reasonably accessible."  Nonetheless, the court was skeptical of the likelihood of retrieving relevant data from the backup tapes and ordered defendants to first produce emails from active storage in order to assess the likelihood of finding relevant and discoverable data on the backup tapes. If relevant emails are recovered, the court would reconsider recovery of emails from backup tapes at defendants' expense.