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Alextronic Discovery
An Electronic Discovery Blog covering News, Articles
and Thoughts for the Legal and Corporate Community Author: Alexander H. Lubarsky, LL.M., Esq. - alubarsky@enterusa.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


Thursday, January 29, 2004

From Washington to Nigeria and Back...  

From Washington to Nigeria and Back...

Not too many industries are able to fly low under the radar these days. Gone are the days in the seventies where huge land deals would be struck in clear violation of zoning and public housing regulations. We bid adieu to the gluttonous 80's where frat boys manipulated junk bonds just enough to plop a red Testarossa in the four car garage. The offshore wire transfer financial institution scams of the nineties are now history. Where did all the fun go?

Now I'd be the last to suggest that we've entered into the clear zone. I for one am still awaiting for King Neby Mgawanga of Nigeria to deliver me my fifty-million dollars of his Uncle's (King Matawabu III) once frozen assets that I helped liberate. I've also been noticing the mysterious debits on my Visa card from some company called V-I/\G.R/\ .com for them vitamins I've been taking that have been keeping me up late at night.

We can now rest assured that our interests are protected not by the new moral code promulgated by the Bush Jr. administration but rather by the new certification requirements calling for records retention standards. The Sarbanes-Oxley Act of June 2003 which requires CEO's and CFO's of financial institutions to retain essentially all internal and investor electronic communications. Also, any "significant changes" made to the corporate financial reporting scheme must be duly revealed via a quarterly report. Failure to report/retain would subject the CEO or CFO to criminal penalties if such a failure was knowing and in bad faith.

These new regulations don't only protect our pocketbook, they allow us to engage some of America's most important institutions with a renewed sense of trust and zeal. It's sort of like knowing that the new DC-10's have remote auto-pilot capabilities today just in case the pilot starts to doze...

Of course, these new requirements call for the enhanced retention of electronic records which translates into an avalanche of electronic discovery when it comes to litigation. Companies who are in business to help these financial institutions retain their electronic communications and therefore stay compliant with the new regulations (fines have reached into the hundreds of millions of dollars for those who have strayed from the regulations) are partnering with electronic data processing outfits to handle this onslaught of electronic data comprising the bulk of what used to be traditional paper discovery.

As a nation of laws, I don't see us going the other direction anytime soon. "Lawless laissez faire" societies such as modern day Russia went from extreme regulation to the wild west and they have suffered. Of course, there is a happy medium out there somewhere - but finding it is the trick. In the meantime, them EDD and financial data capture machines will be a hummin...

posted by Alexander | 12:45 AM


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

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