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and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - email@example.com - Tel. (415) 533-4166 OR 800-375-4222 THIS BLAWG IS NOT AFFILIATED WITH THE WEB SITES WWW.DISCOVERYRESOURCES.ORG OR WWW.DISCOVERYRESOURCES.COM
Monday, January 26, 2004
Dual Meanings of Disaster Recovery Dual Meanings of Disaster Recovery
I've been getting a repeat question. Not a common occurrence in an area so convoluted and limitless as is electronic discovery. If lightning strikes twice, I guess you gotta pay attention.
Here's the recurring nightmare:
Counsel for Defendant is asked to produce electronic records X dating back to a period of alleged harm which happens to be several years ago.
Well, the requested data no longer lives on the "live" server and the backup tapes are no longer in storage due to a retention policy that (in compliance with industry standards) does not require their preservation for so many years. Hence, the data does not exist... well almost.
Introducing the disaster recovery tapes.
Most large corporations have a secret set of tapes that would make Richard Nixon think again about joining Columbia House. These are the disaster recovery tapes and as their name suggests they tend to be archived infrequently but stored forever in the case of a real emergency. Since September 11th, we've seen a resurgence with regards to such emergency retention practices.
Of course, the obvious questions become:
1. Must the party subject to the request respond by accessing the disaster recovery tape?
2. What if the standard backup data that has no longer been retained (and rightfully so in accordance with a reasonable retention/destruction policy) yet, still can be obtained through the disaster recovery tapes? If the party does not wish to produce, must it still do so because it has the disaster recovery tapes?
In both scenarios (the second applying only to a party who is resisting a production request) the courts have answered "no."
Disaster recovery tapes are a necessity that should not place an extra burden or obligation upon the organization that maintains them. Judge Shira Scheindlin is just one of several jurists who has delivered such a holding (she discussed the lack of a duty to produce or restore from disaster backups in the Zubulake IV decision - SDNY, October 23, 2003).
Therefore, that disaster tape is a real gem. It may be restored and accessed by a litigant who wishes to use its data to respond to a request for electronic evidence (possibly in an effort to negate an element of the Plaintiff's cause of action or otherwise defend the matter at hand) however should it not be in the best interest of the recipient of the document request, that party can choose to leave the disaster recovery tapes undisturbed.
A real trump card.
So, next time the IT person or inside counsel raises his or her eyebrows at the practice of maintaining limitless backup tapes for disaster recovery purposes only, you can assure them that such data does not, in fact, present added exposure in that its data usually cannot be compelled in the absence of the requested data appearing on standard backup media or "live" on the network/desktops and other data storage units.
posted by Alexander | 12:03 AM