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The Problem with Backup Tapes: District Court Orders Retention of Old Backup Tapes for Ongoing Litigation

In this patent infringement action pending in a multi-district litigation, one of the defendants moved the district court for an order allowing the defendant to destroy old backup tapes. Defendant ICM, Inc. (“ICM”) moved for an order permitting it to destroy old backup tapes that contain electronic business information of ICM for the years 2003 through 2009.

ICM had previously provided access to the backup tapes in discovery to Plaintiff GS CleanTech Corporation (“CleanTech”). CleanTech had extracted information from the backup tapes using CleanTech supplied search terms.

In its motion, ICM asserted that the data derived from the search terms was in the possession of and would be retained by CleanTech’s discovery vendor. ICM asserted that therefore there would be no prejudice to CleanTech if the backup tapes were destroyed. Although CleanTech did not file an opposition brief, it did indicate that it disagreed with ICM’s position.

Without much analysis and with no opposition from CleanTech, the district court denied ICM’s motion: “CleanTech has indicated its disagreement to ICM; however, it did not file a brief in opposition. The Court appreciates ICM’s consideration, however, it concludes that because litigation is ongoing, the backup tapes should be retained. The Motion is DENIED.”

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The decision, although brief, highlights the problem of retaining data for years on backup tapes. It becomes difficult to eliminate the data and the data on backup tapes is usually wide ranging, covering many different business interests. To make matters worse, if there is any ongoing litigation it may become impossible to destroy the backup tapes without permission of the courts in which the litigation is pending and, as demonstrated in this case, courts may be reluctant to give that permission while the litigation is pending. This is why it is important to maintain backup tapes for a brief period of time for disaster recovery purposes only.

In re: Method of Processing Ethanol Byproducts and Related Subsystem (‘858) Patent Litigation, Case No. 1:10-ml-02181-LJM-DML (S.D. Ind. Feb. 9, 2016)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or

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