Texas Court Rules Defendants Had No Duty to Preserve Back-Up Tapes
By: CYNTHIA A. MOYER
July 2011
On May 27, 2011, the United States District Court for the District of Texas held that a defendant had no duty to preserve back-up tapes, even after the filing of a lawsuit. Gaalla v. Citizens Medical Center, 2011 U.S. Dist. LEXIS57317 (S.D. Tex. 2011).
Upon learning of the failure to preserve the back-up tapes, the plaintiffs moved for sanctions, contending the defendant’s continued reuse of back-up tapes on a seven and 14-day rotation after litigation commenced constituted spoliation of evidence. The defendant argued that the back-up tapes were merely a “disaster recovery” system, and were not subject to any preservation obligation.
The court agreed with the defendant, and held that the back-up tapes were not reasonably accessible. Applying a proportionality concept, the court held that the defendant took reasonable preservation steps “in the context of this case.” Lastly, the court held that even if the defendant had an obligation to preserve the back-up tapes, sanctions were not warranted because the plaintiffs failed to show the defendant acted in bad faith. The defendant issued a litigation hold shortly after the case was commenced, and took snapshots of key employees’ email accounts.