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easy way to compare the two methods of preservation is to consider the difference between retrieving an email that has been archived versus backed up.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

Recent Surveys Illustrate Complexity of E-Discovery Compliance for U.S. Companies

The challenge of complying with e-discovery rules was illustrated in the results of two surveys released recently. A survey from Robert Half Legal, (a company specializing in attorney recruitment and placement) found that one in four lawyers in North America believe that e-discovery will have the single largest impact on the practice of law in the next five years. Why? According to Charles Volkert, Executive Director of Robert Half Legal, "the complexity and cost of the task, coupled with the associated information technology and human resource needs, make [e-discovery] a challenge."

Similarly, a survey published in eWeek.com  found that two-thirds of U.S. businesses are generally ignoring the issue of e-discovery.  According to the survey's author Michael Osterman, the companies, "are either ignoring the new federal mandates for compliance and e-discovery or are clearly not well educated on how to meet the technical requirements."

The results of these two surveys, at first glance appear somewhat contradictory. Are the majority of companies really ignoring the legal issue expected to have the largest impact in the near future? However, both surveys seem to point to the same problem, a lack of clarity in many companies on how to effectively and efficiently comply with e-discovery rules. 

The survey conducted by Robert Half indicates that e-discovery is expected to have such a large impact because of the complexity and expense of compliance. Likewise, in discussing the results of the survey in eWeek, Michael Osterman, stated that many companies are still unclear on the concept of e-discovery in general. "There really is no consensus yet on whether a company should keep all its e-mail and other docs, or whether a company should keep a finite number of years' worth of data, or whether it should keep more than 30 days' worth of data."

Time will tell whether e-discovery will be the largest issue facing the practice of law in the U.S. However, the actual impact will likely largely be effected by the current corporate response to e-discovery rules.