The ABCs of Electronic Storage: Archives v. Backup Tapes in the Courtroom

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easy way to compare the two methods of preservation is to consider the difference between retrieving an email that has been archived versus backed up.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? 

THE BASICS:  According to Matthew Lodge, writing in The Metropolitan Corporate Counsel,  “Active archiving…is a way of centrally managing the storage, retention and hold of information while ensuring ‘live’ (or active) access to any item. Active archives are indexed so that information can be rapidly retrieved for business, regulatory or e-discovery purposes.”    He goes on to say that “Once in the archive, an item can be controlled according to an information management policy.”  By contrast, it makes more sense to use backup tapes exclusively for the recovery of information in the event of a disaster, since using backup tapes for retrieval of information during discovery is extremely burdensome.  Such tapes are not "live" data that is currently on the system, neatly categorized and easily accessible.  Rather, picture them picking up dust in a virtual warehouse (and in some cases, actual warehouses), like the unorganized, over-stuffed filing cabinets of the pre-computer era.  The natural result:  a costly and time-consuming process.

 

THE COURTS:  The courts in Coleman v. Morgan Stanley, 2005 WL 679071 (Fla. Cir. Ct. Mar. 1, 2005), Toussie v. County of Suffolk, 2007 WL 4565160 (E.D.N.Y. Dec. 21, 2007), and Adams & Associates v. Dell Inc., 2009 U.S. Dist. LEXIS 26964 (D. Utah Mar. 27, 2009), have exposed the inefficiency of using backup tapes as a principle method for retrieving information, instead of archiving.   In Toussie, for example, the County of Suffolk failed to archive data and was required to restore backup tapes in order to provide information responsive to a discovery request.  Despite a reduction of the search request to 35 search terms, the County of Suffolk incurred costs in the range of $600,000 to $900,000.  It could have averted an overwhelming amount of this cost had it archived information. 

 

THE LESSON Take a long, hard look at how your company is storing information -- notably, whether the reliance is more on archiving or backup tapes.  Unfortunately, if a company relies too heavily on backup tapes rather than archiving, a court may have no choice but to order the expensive and time-consuming retrieval and production of backup tapes, or major portions thereof.  A cry of "too burdensome!" and "too time-consuming!" may not work to excuse production.  If this sneaky strategy could work, everyone would keep their electronic information on backup tapes in order to skirt discovery in litigation. 

 

Thus, a company that relies heavily on backup tapes for preservation purposes may be wise to subject its retention policy to an overhaul going forward.  While this may seem like a pain in both the neck and the pocketbook, the savings will multiply astronomically once litigation comes down the pike and stored information needs to be gathered and produced.  So when considering how to best prepare for possible future litigation, remember your ABCs -Archiving beats Backup in the Courtroom - and you’ll stay at the head of the class.

Documents Kept in the . . . Irregular Course of Business?

In yet another example of why records managers should be coordinating with legal on storage of documents, the U.S. Federal Court of Claims has held that documents archived in a manner other than the regular course of business do not comply with Rule 34 of the FRCP. 

In Ak-Chin Indian Community v. United States, 85 Fed. Cl. 397 (2009), documents stored in a different filing system than they were kept prior to transfer to storage were held not to have been kept in the ordinary course of business.  In that case, the plaintiffs were suing the government and wanted to get their hands on responsive documents kept in a bunch of boxes at the American Indian Records Repository (AIRR).  The boxes were indexed using an off-the-shelf commercial software package that "captures information about the source, files, and documents in [each] box [which information is subsequently] entered into the . . . database."  Id. at 398.  People digging around the database for, say, documents responsive to discovery requests, could run queries to search for them.  Id.  So, when served with discovery requests, the government turned to its handy database, ran a few queries to find the boxes that likely contained responsive documents, and sent the database query results along to the plaintiffs.  Id. at 399.  The plaintiffs filed a motion to compel, arguing that this didn't constitute a production of responsive documents organized and labeled by category of request as required by Rule 34 of the Rules of the U.S. Court of Federal Claims.  Id. 

Under Rule 34, "[a] party must produce documents as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the request."  Id. (quoting RCFC 34(b)(2)(E)(i)).  The Ak-Chin court held that the documents at the AIRR were not maintained in the ordinary course of business under Rule 34, because prior to transfer to the facility, they were reorganized from the filing system of the local agency offices to conform with the AIRR filing system (not wholly surprising, considering that AIRR was a records repository and records are not always in tip-top shape, organizationally-speaking, when they are first unearthed from the mess that makes up most people's filing cabinets). Id.  The court explained that "documents in storage are no longer in the usual course of business, they are kept in the usual course of storage," such that the only option under Rule 34 was to label and categorize the documents.  Id. at 400.  For documents transported to storage to still be kept in the ordinary course of business, the court said, the documents must be stored in the same way they were kept.  Id. The court was also concerned that the filing system at AIRR did not permit a meaningful review if the plaintiff was dissatisfied with the production.  Id. at 401.  Because only the boxes were indexed, not the specific documents in the boxes, the government was out of luck.  Id.

Take home message? Know just how your documents are arranged in storage in relation to how they're kept before they're retired to archives, boxes, and closets or you may incur additional costs to produce them.