What Attorneys Can Learn These Treacherous Topics to Strategically Prepare For Electronic Discovery

Electronic discovery (“eDiscovery”) is often perceived as a proverbial bottomless pit since the quantity and intricacy of electronic stored information (“ESI”) tends to be exponentially greater than paper records.  To compound matters further, with modern technologies the restoration of backup tapes are frequently deemed necessary to the ESI equation when preparing for litigation.  Although more often than not essential, backup tape restoration can be a thorny, costly and time-consuming portion of any case if not conducted properly.

Whatever could the complications be? 

Perhaps one’s client spent numerous years developing a plethora of backup tapes and counsel has a mere few days to pinpoint them and have them restored.  Or, once acquired, the restoration (gasp!) does not go as seamlessly as planned when some of the tapes are not labeled. Moreover, perchance and to further muddle matters, say the original hardware and software used to create the backup tapes is unavailable, since the client is now using a new, and purportedly better, backup technology.

The list goes on and on and….

Nevertheless, counsel can and must take stock when it comes to backup tapes, for if one exists and is relevant and accessible it may need to be restored and produced to the dreaded other side, if requested.   

Determining The Universe: What, Exactly, Does The Business Have?

Depending on the magnitude of the business, it may have personnel dedicated to the formation, restoration and oversight of its backup tapes. These staff members are an invaluable resource to begin obtaining key data about the company’s backup tape processes and a good resource to start with to find first-hand information about the backup-tape inventory.  They perhaps will be able, in addition, to procure some of the company’s historical backup tape dealings.  Most poignantly, however, these individuals would possibly be aware of any exceptions to the businesses backup tape protocols, both institutionalized and informal. 

That said, although evaluating backup tape procedure is a fine place to start, protocols will only point to some of the localities where the tapes may be found.  More often than not, there will be exceptions whereby backup tapes were created and maintained ‘outside the scope of the protocols’ for a variety of reasons.  For instance, special projects, firm restructuring, backup tape system upgrades and emergency measures are but a short list of the possible reasons why a business may have separate, distinct on-the-fly backup tape policies.  All ad hoc company backup tape policies are vital precisely since they were conceived beyond the business’ regular protocols and are likely to house exceptions from official company data recycling or deletion procedures.  Furthermore, backup tapes earmarked for destruction or deletion might have been omitted or otherwise misplaced and subsequently located at the business.

Next, while engaging company staff, as shown above, can provide fruitful results when locating and interrogating backup tape data, in order to verify any of the data, one must request staff to procure a report from the actual backup systems. Many backup tape systems will contain a recording snapshot of its own contents for archival purposes.  Some also will even contain an actual listing of the data files found on each and every particular backup tape.  Be on the lookout, in this instance, for recycled backup tapes which may or may not be marked with the time and date of the first backup.  Recycled backup tapes tend to merely have a distinct bar code for identifying purposed.  Contrast this inventory against whatever catalog information is provided from the backup tape systems to ascertain whether any inconsistencies arise.

An additional resource to confirm what backup tapes the business may own necessitates the engagement of business’ data storage vendor, if one exists. Even though a business might have, at first glance, what seems to be an immaculate inventory of the backup tapes it maintains, the vendor tasked with care for the tapes may have an added level of knowledge to contribute to the conversation.  An actual accounting of where the vendor’s storage facilities are located and how it conducts the backups is recommended.

Naturally, the time and wherewithal to take on the issues noted above will fluctuate from time to time.  Businesses must review each and every ounce of the backup tape data, as is possible.  However many sources interrogated, one should strive to contrast each source of backup tape data against the other to lessen the risk of losing valuable pieces of the puzzle. 

Establishing Backup Tape Date Ranges

A company’s technical personnel may backup information daily, weekly, monthly or even yearly.  The task here, to ensure consistency and data security, is determining how to verify the time periods noted on specific backup tapes.  To do so, one must ascertain the kind of server used to conduct the backups, any business protocols on point and how employees interpret them.  

What practical differences exist vis a vis company time records and particular backup tapes?

Reflect on the following.  Assume the business maintains that it conducts its tape backups on a yearly basis.  This does not necessarily mean it has on hand the entire year’s backup tape information on one tape, neither does a weekly tape backup scheme correlate with a single backup tape containing a month’s worth of data.  On the contrary, the majority of tape backups are merely pictures of the information at the instant the backup actually occurred.  Therefore, the description of a daily, weekly, monthly or even yearly tape is simply a depiction only of the time the backup was created. As an example, a monthly date may only indicate that the backup tape was created on November 30 and contains data that was on the company server as of that precise date.

Email is curious as well.  User A might have a practice of erasing all email each day while User B might save emails for a month. Depending on the business’ server used to store company email, only one day’s email may be pinpointed for recovery if the monthly tape is retrieved for User A, but multiple years of email may be refurbished for User B.

To help combat this email and other similar conundrums, some businesses set restrictions on their backup tape servers to circumvent running out of available server storage space. Perhaps the two most popular modes for these limitations are date and volume.  The former is most useful in comprehending what date ranges the backup tape actually covers. Should a business have a date limitation in place that will allow it to store company emails only from the preceding seven days then all email from day one may be erased on the eighth day.  Electronic messages from day two are then nixed on day nine and so on and so forth.  This also means that one can deduce that the snapshot of the email messages located on the backup tape contains seven days of email.

Tick, Tock -- Time Considerations When Reinstating Backup Tapes

While bygone backup tape technologies are naturally sluggish when pitted against modern alternatives, there are a variety of additional factors to ponder when seeking to calibrate the quantity of time needed to refurbish a backup tape.  Painting with a broad brush, one should consider the average file size, the type of the backup tape used, how much capacity the backup tape has and what type of restoration hardware was in play.

Time can also be of the essence.  When racing against the clock the restoration of an email server backup tape where all stored information was located in one file may take about five hours to complete. The exact same backup tape configuration with multiple broken up smaller files from a company backup tape file server may take an even longer amount of time to restore.  Why?  Additional granularity is required.  When approximating the amount of time needed to reinstate multiple tapes one should refurbish one tape from each tape subset, and then extrapolate that quantity of time by the overall volume of diverse backup tapes to be reinstated.

Backup Tape Disaster Preparedness and Recovery Best Practices

Many law firms and corporations nowadays have legitimate backup tape recovery plans firmly rooted in place.  However, only a select few practically meet the needs of the company, specifically when it comes to delivering on time.  Crafting a backup tape disaster recovery plan that can be implemented at any point of time is of paramount importance since the potential of unknown and unforeseeable natural disaster or criminal activity may be lurking just around the corner for the company to abruptly face.

Vital to any modern backup tape disaster recovery plan is simple timing.  They are the backup itself and precise replication. Backup tape disaster recovery plans, similar to any other tech department endeavor, contend with the myriad of other assignments on any company IT department’s master agenda.  Thus the first step is making the construction of a backup tape system that can serve as a dependable doomsday disaster data repository, a top priority. 

A recurrent pitfall in backup tape disaster recovery planning is the assumption that the responsibility for the construction and implementation of these plans falls squarely, and solely, on the shoulders of the company’s information technology department.  Although disaster recovery is clearly a technology department consideration, in actuality this topic must be classified as a company stability proposition.  This is because disaster recovery measure, which means that while very much a technology concern, it is an issue has the ability to shape the business’ very existence. Therefore, all segments of a company’s upper management must be involved to understand what the plan, and its budgetary implications, means to their specific department and how to appropriately respond and contribute.   

The resources necessary for the construction of backup tape disaster plans used to be something that was reliant upon means unattainable to many companies, such as secondary or even primary backup data centers. Nonetheless, these plans can become more realistic for medium and smaller firms by renting room for its hardware at a reputable network services provider. In addition, further progress has occurred in software that now allows medium and smaller businesses to better maximize their in-house resources to allow for far more vigorous backup tape disaster plans than formerly thought to be possible.

Conclusion

With the crippling sanctions imposed by the Zubulake, Wachtel and Morgan Stanley as to abuses of the discovery processes as they relate to creation and handling of backup tapes, there has been renewed emphasis on the necessity to supervise these facets of information management with greater alacrity and zest.  Some businesses are shying away from backup tapes as a model and are opting for newer, quicker data recovery technologies.  Yet, the majority of businesses have marched on with their backup tape systems and disaster recovery protocols with enhanced internal protocols for the inception and handling of the backup tapes. In either case, one thing is for certain.  Businesses - now and in the future - will need to grapple with how to approach their backup tape systems before, during and after litigation hits. 

This article was published in the Fall 2009 Technology for the Litigator Newsletter which is put out by the American Bar Association.