In Makrakis, et. al. v. DeMelis, R.N., et. al. [pdf], No. 09-706-C (N.Y. Sup. Ct. Jul. 13, 2010), Superior Court Judge Peter Lauriat denied the plaintiffs’ motion to compel the restoration of 22 year's worth of the defendant hospital’s backup tapes, but allowed the plaintiffs, at their own expense, to sample the tapes and renew their motion, if necessary.

In this medical malpractice action, the plaintiffs sought email communications from backup tapes relating to 13 current and former employees of the defendant Brigham & Women’s Hospital (“BWH”) from January 1987 to present. BWH opposed the motion asserting the restoration and search of the tapes would be unduly burdensome, prohibitively expensive, and of little utility given that the defendants had already produced BWH's records of its investigation of the incident, the plaintiff's complete medical records from his five-month admission at BWH's Intensive Care Unit, BWH's complete personnel file on defendant DeMelis, a complete copy of the investigation of the incident by the Division of Licensure of the Department of Public Health, deposition testimony of at least ten BWH employees, and copies of emails from the date of the incident that were preserved on the individual computers of several BWH employees. In addition, the defendant’s expert opined that it would cost $550 per tape for full backup restoration and the cost of restoring 16 months of backup tapes would be approximately $575,000.

The court, acknowledging FRCP 26(b)(2)(B), held that restoring the backup tapes would impose an unreasonable burden and expense on BWH, particularly given the plaintiffs’ request was not limited to a narrow time frame but instead spanned more than 20 years. Further, the court noted that the plaintiffs failed to explain why other sources of discovery were insufficient to secure the information they suspect was buried in the backup tapes. 

At the same time, the court recognized the backup tapes could conceivably be the sole source of relevant information and, as such, the plaintiffs should at least be afforded the chance to sample the tapes to satisfy their curiosity. The court, citing Zubulake v. UBS Warburg, LLC, 216 F.R.D. 280, 284-89 (S.D.N.Y. 2003) and Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309, 322-23 (S.D.N.Y. 2003), permitted plaintiffs, at their own expense, to sample the emails stored on the backup tapes. If the information obtained warrants a further search of backup tapes for relevant emails, plaintiffs may move for a further discovery order from the court.