E-Discovery Bytes : E-Discovery Lawyer & Attorney : Quarles & Brady Law Firm : Electronic Discovery, Data Preservation, Conversion, Computer Forensics

Now that school is in session, don’t get an education about electronic discovery the hard way by not knowing the difference between archived data and backup data, or you will find yourself banging your head on your desk . . . or being sent to the corner of the room by a court.  The key:  archiving and backup are NOT the same thing -- far from it.  Knowing the difference can cost you significant headaches, time, effort, and money, and can even impact the outcome of a case.

An easy way to compare the two methods of preservation is to consider the difference between retrieving an email that has been archived versus backed up.  Let's call it E-mail X.  If you “archive” E-mail X, you can still retrieve it easily to re-read it, move it to a folder, forward it, or otherwise use it just like the un-archived emails.  And it can be accessed from more than one computer station, meaning that someone cannot simply lose the one and only copy.  On the other hand, if you had created a “backup” of E-mail X, it would have been recorded, along with everything else that was work product that day, on a single backup tape.  There are two problems here.  First, the backup tape itself could be anywhere -- the back of a closet or a warehouse, for example.  And if that one tape got lost or was ruined in a fire, E-mail X is gone forever.  Second, even if the backup is locked in a well-secured safe, going back to actually find E-mail X would be akin to looking through a box of hundreds or even thousands of unsorted photographs for that one needle in an electronic haystack of information. 

Both ways maintain a record of the information, but which would you rather use if responding to a request?  Which would save cost, time and peace of mind? 

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"When the individual feels, the community reels."
                              - Aldous Huxley, Brave New World

As we all adapt to the “Brave New World” where one’s every thought or utterance can be instantly broadcast to hundreds, thousands, or millions of people via Facebook, Twitter and other social networking media, it stands to reason that some of these electronic “feelings” will impact the legal community and the way electronic information is used in litigation.

Despite his fictional view of the future, it’s hard to imagine that Huxley could have foreseen our current environment of lightning-fast relay of stream-of-consciousness meditations. As a primary example, Hadley Jons, a juror in Mount Clemens, Michigan, was removed when it was discovered that she had posted on Facebook that it was going to be “fun to tell the defendant that they’re guilty.”  Naturally, the fact that the trial was not over and the defense had not even begun presenting its case presented more than a little problem . . . 

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