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easy way to compare the two methods of preservation is to consider the difference between retrieving an email that has been archived versus backed up.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

Big Trouble in the Big Easy

Hurricane Katrina was the storm of the century down in the Ninth Ward, but in downtown New Orleans, a different kind of storm is brewing. Just in time for the February 24th Mardi Gras celebration, the party in City Hall has come to an abrupt halt, and the Krewe of Nagin has brought Trouble to River City. 

The city’s records retention policy and state public records law requires that all email and public records must be preserved. In fact, under the "enforcement" section of the Nagin administration's recommendations for preserving e-mail, the city's technology office suggested that "any employee found to have violated this policy might be subject to disciplinary action, up to and including termination of employment." Moreover, violations of the state law requiring the emails to be kept for three years is punishable by as long as five years in prison and fines up to $5,000.

Can you say “Uh-oh?” On February 19, 2009, Frank Donze reported in the New Orleans Times-Picayune, http://www.nola.com/news/index.ssf/2009/02/email_deletions_violate_nagins.html, that the Mayor’s office has disregarded its own policy, by deleting six months of the Mayor’s own emails, totaling over 1,500. The Nagin administration's only comment came from the city attorney, Penya Moses-Fields, who blamed the destruction of e-mail on "server storage and capacity problems, which have temporarily limited the city's capabilities to retain employee e-mails for any extended period of time."

Huh? Can’t Mayor Nagin or someone on his staff simply purchase a flash drive? A former city official, Tommy Milliner, compared the Nagin administration's assertion that lack of space is the reason for the deletions to saying, "you have files and then you leave them out in the rain because you think you can't afford a storage room to put them in." Milliner wasn’t the only one scratching his head; local technology and legal professionals were also puzzled by the argument that limited storage space was the underlying issue.

"Lack of storage is an easily solvable problem," said Stephen Segari, a senior developer at Carrollton Technology Partners, a New Orleans technology firm. "It's not an issue of money or time. If you say you don't have space, it's an excuse, not a reason." He also said that for approximately $100, he could install a 1-terabyte hard drive that is capable of storing more than 107 million typical e-mail messages. Similarly, Loyola professor Dane Ciolino said, "This mayor has often touted his administration as being very tech-savvy…and yet, what has happened in this case is inexcusable. The basic, fundamental thing you do is to make sure your data is secure and backed up."

The moral of the story is that data storage is cheap and easy. Make sure that your storage solution is adequate for all corporate records, including email.  Otherwise, you could face a Katrina sized flood of trouble when your records are examined more closely than a strand of mardi gras beads on Bourbon Street.