1. What Does It Mean?

Archiving is not storage. Storage is putting data on a tape, WORM drive, or cold cloud bucket. Archiving with searchability requires:

1. Cataloging: What is the record, who created it, when?
2. Indexing: Extracting full-text, metadata, attachments, embedded objects, so that keyword filtering works.
3. Accessibility: That it remains in a form that is reasonably accessible, not on obsolete hardware or unintelligible legacy systems.

When organizations just dump reports onto backup tapes for disaster recovery without an index, those backups are "not known for robust indexes or the ability to search historical content". The law calls this "not reasonably accessible" information - unindexed, hard-to-search backup tapes, deleted information, legacy information.

Result: Unindexed items "can't be indexed for search" and "may significantly slow down digital data collection in legal investigations" and must be identified separately.

2. Why Is It a Legal Violation?

A. Under US Federal Rules of Civil Procedure Rule 34 and Rule 26

You must produce documents as they are kept in the usual course of business, and if you produce without folders or custodian information, courts can order you to create an index. In United States v. O'Keefe, Cr. 06-249 (D.D.C. 2008), defendants complained production was made impossible to identify source/custodian and sought an index. Court held under Rule 34(b) you must produce them in the form in which they are ordinarily maintained or with an index.

You must also disclose existence of ESI on sources that are not reasonably accessible, even if you haven't searched it.

B. Under Indian Law - RTI Act and Public Records Act

Section 4(1)(a) RTI Act, 2005: Every public authority shall "maintain all its records duly catalogued and indexed in a manner and form which facilitates the right to information" and within 120 days of enactment.

Section 4(1)(a) + Section 2(j) = requirement only to maintain records in a manner which facilitates the right to information.

CIC has repeatedly held: "public authorities have failed to comply" with Section 4 which mandates to maintain all its records duly catalogued and indexed. Failure to maintain due to lack of infrastructure is not a defence - CIC directs to maintain records in proper format & disclose voluntarily u/s 4(1)(b).

Also, Public Records Act, 1993 mandates public offices to maintain, preserve, and protect government records and prohibits destruction except as prescribed.

3. Landmark Case Laws

A. US E-Discovery Landmark: Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003)

The foundation case.

Facts: Laura Zubulake sued UBS for gender discrimination. UBS produced 350 pages including 100 pages of emails, but Zubulake had herself produced 450 pages. Key evidence was in emails exchanged among employees that existed only on 94 backup tapes and archived media. UBS refused, arguing cost $175,000 to restore.

Holding:

1. Court established duty to preserve when litigation is reasonably anticipated.
2. Data on backup tapes intended for disaster recovery that are not indexed, organized, or susceptible to electronic searching is NOT exempt - if relevant, it must be restored.
3. Court ordered UBS to produce responsive emails from optical disks and active servers at its own expense, and 5 backup tapes selected by plaintiff at its expense.
4. In Zubulake IV and V, court found UBS failed to take all necessary steps to guarantee relevant data was both preserved and produced, and granted sanctions, including adverse inference instruction. Led to $29.3 million verdict.

Principle: Failure to make archive searchable = failure to preserve.

B. Pension Committee v. Banc of America Securities, 2010 WL 184312 (S.D.N.Y. 2010)

Cited as the gross negligence standard. Failure to issue written litigation hold, failure to preserve, failure to collect from key players = gross negligence. Sanctions from cost-shifting to preclusion.

C. Qualcomm Inc. v. Broadcom Corp., 2008 (S.D. Cal)

Qualcomm failed to produce 46,000 relevant emails because its search was limited to unindexed archives without proper keywords. Court sanctioned $8.5 million for intentional concealment. Court held failure to properly prepare for e-discovery can have devastating consequences.

D. E.I. DuPont v. Kolon Industries, No. 3:09cv58 (E.D. Va. 2011)

Defendant deleted at least 17,811 files and emails after litigation hold. Court found spoliation in bad faith, violation of duty to court, ordered adverse inference and attorneys' fees.

E. Gutman v. Klein (E.D.N.Y.) - Death Knell Sanction

Failure to preserve relevant electronic data on laptop led to claim of spoliation. Court held failure to preserve relevant electronic data can lead to default judgment - the ultimate sanction.

F. Indian Cases:

1. Lokesh Batra v. Supreme Court of India - CIC Appeal then Delhi High Court LPA 24/2015 and Supreme Court W.P. (C) 990/2021
RTI activist sought data on reserved judgments. CPIO said data is not maintained in manner sought. Delhi High Court in PIO v PD Gupta set aside CIC order directing High Court to provide data, holding where information is not maintained, public authority would have to examine records of all cases. Supreme Court dismissed plea for maintaining records of reserved judgments. This is often cited to show limits: Section 4(1)(a) applies only for records available with public authority, but it does NOT excuse not indexing what you are required to maintain.

2. Fruit & Merchant Union vs Chief Information Commissioner - CWP No. 4787 of 2011
High Court held where information sought is not part of record and not required to be maintained, cannot be compelled. Conversely, where statute requires maintenance (service books, assessment reports, audit reports), failure to index is violation of Section 4.

3. CIC Decision - Co-operative Society Records (2014)
Statutory records not maintained due to lack of infrastructure - CIC held maintain records in proper format & disclose voluntarily u/s 4(1)(b). Diversion of resources not an excuse if law requires cataloguing.

4. Consequences and Modern Standard under FRCP 37(e)

Amended Rule 37(e) imposes sanctions for failure to preserve ESI:

• If loss despite reasonable steps - no sanction - Richard v. Inland Dredging, 2016.
• If prejudice found - curative measures.
• If intent to deprive - adverse inference, dismissal, default judgment.

Best Practice Mandate: Index must identify where ESI is stored, and whether ESI sources are reasonably accessible.

5. Checklist to Avoid Liability

1. Don't use backup tapes as archive. Archive = indexed, searchable database.
2. Implement retention policy + legal hold + indexing at ingestion.
3. Text extraction from embedded objects, attachments, compressed files.
4. Audit unindexed items report in M365 eDiscovery / Google Vault.
5. For public authorities in India: Comply with Section 4(1)(a) RTI - catalogued and indexed within 120 days, proactive disclosure under 4(1)(b).