Dear all, 

Email backup tape rotation (and related over-retention issues) is perhaps
the most complex records and information management challenges organizations
face today. Backup tapes should be used for disaster recovery, but many
organizations still use those media for archives, retention or storage, with
a trend toward increased use of archive storage technologies.
Legal/compliance must be in lockstep with IT/RIM in terms of development and
enforcement of policy and procedures concerning backup tapes.  Flawless
execution on litigation holds is essential to mitigation of legal and
financial risk.  

This is a take-no-prisoner compliance area and courts are not accepting the
"keystone cops" defense anymore.  All organizations need to tighten up and
audit their procedures for backup tape rotation, establish high-level
catalogues/inventories of existing tapes; or develop policy and procedures
if they have no policy and procedures in place (ASAP).  Keeping everything
is not a good alternative, and once you access information on email backup
tapes, for whatever reason, it is difficult to argue in court that you
cannot produce information from those tapes on the basis that the ESI is not
reasonably accessible.  

I will not pontificate further here all the nuances (though I reserve the
right to vent more ideas later), I thought I would repost (below) a long but
thoughtful commentary by Hugh Smith back in June on this listserve.  

Best regards,


Rick Wolf


347 Mount Pleasant Avenue
Suite 204
West Orange, NJ 07052
(973) 324-0050 (direct)
(973) 324-0052 (fax)
(201) 602-9486 (cell)
www.lexakos.com



On Jun 25, 2007, at 12:02 AM, RECMGMT-L automatic digest system wrote:
> Backup Tapes in Mass Tort Litigation
> Law.com (subscription) - San Francisco,CA,USA 22, 2003) (finding 
> company liable for spoliation of evidence for failure to preserve 
> backup tapes). The leading cases on preservation of backup tapes are 
> ...<http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?
> id=1182243951
> 535>


This is a RAIN Post that one and all should look at. It provides a nice
opening to arrange a session with Legal, IT and Records Management.

> Companies involved in mass tort litigation thus face a "Hobson's 
> Choice" when it comes to preserving backup tapes. There are real 
> questions of whether the preservation obligations set forth by the 
> Zubulake decisions make sense, or are reasonable, in mass tort 
> litigation. On the other hand, the potential consequences of not 
> preserving backup tapes can also be extremely costly.

While the attorney understands the law, they fail to recognize the nature of
the media.  To merely store the media for prolonged number of years that it
takes to come to trial and then the certain appeals that would occur, the
media itself will degrade.  Failure to understand this on the part of the
defendant's legal team and the defendant would make them liable due to the
spoliation of the media.

Failure to react on the part of the defendant to store their media in an
environment which will preserve the life-span of the media could be
construed as contempt or as defined in SOX spoliation of the records copy.
My experience tells me that the vast majority of Fortune 500 corporations
select their offsite media storage vendors on the following criteria:
1)  The cheapest
2)  A vendor who can provide one invoice for multiple locations
3) A vendor that can be called on to protect them in a time of crisis

All three of these actually backfire because
1) Cheapest  -They get what they pay for.  Minimal protection from
catastrophic loss, poor environmental protection and no protection based on
the physical characteristics of the media
2) Invoicing of multiple locations as one - This can lead to production of
records at great cost that have no bearing on the case except to increase
the defendant's defense costs.
3) National vendors clearly remove themselves from all liability for loss of
media whether it be the physical loss of the media by a driver, the
degradation in a poor storage environment or the complete destruction of the
media in a fire or flood.

Clearly the market place is recognizing this risk exposure as the growth of
media vaulting around the world is increasing at an ever expanding rate.
Specialists in media storage and vaulting are now standard in all of the
largest of markets.  In fact, as fast as a national player buys up local
high quality service providers, others spring up to take on the role as the
market desires high quality vendors.  Where this level of protection is not
available, IT is moving towards Server Vaulting of their information assets
in Disk to Disk protection strategies.

In addition, Asigra EVaulting Software is ubiquitous across the offsite
storage industry with providers such as AssureVault in Cleveland or Records
Management & Archiving in Easton, PA or Docusafe in Princeton, NJ or ADS in
the Philadelphia area and on and on; with more locations daily.

I believe that the courts ( Zubulake and Rule 26 and ESI Rules ) will prove
to be "The Tipping Point" in the records storage industry where those who
fail to protect information assets "properly" in advance of legislation will
be viewed as negligent or criminal.

A clear transition is occurring from mass storage in a warehouse where no
liability resided with the service provider; to a sophisticated model where
the client and the service provider work together to avert liability by
providing a defensive strategy that mitigates risk.

It does not serve your company or your legal team to have a records
protection model that dissolves the minute a vendor shows up at your door in
a supposed disaster recovery plan.  Today litigation is the new disaster
that must be averted and the records manager must join forces with Legal and
the Audit Committee to develop an effective strategy.

Corporations recognize the failure of our current model as they are pushing
Congress to make those who partner with them liable for records losses just
as the records owner is liable. The reflex response from vendors in the past
has been to develop contracts that preclude any liability for their own
misbehavior and that will continue with the new legislation.  This will
further propel corporations to seek vendors capable of averting losses or to
pull records keeping totally back in house.

Records managers have a wonderful opportunity with all this change to help
rewrite their own destiny.  What are you capable of?  What position should
you promote?

It is certainly in your best interest to advise management of the trends and
promote a course that protects the integrity of the records but in our
current model is the records manager able to define all that is necessary???

Has anyone out there been able to accomplish this to date?
Who are our role models or Lewis and Clark characters?

Hugh Smith
FIRELOCK Fireproof Modular Vaults
[log in to unmask]
(610)  756-4440    Fax (610)  756-4134
WWW.FIRELOCK.COM


-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On Behalf
Of Carolyn Mariani
Sent: Wednesday, August 15, 2007 1:34 PM
To: [log in to unmask]
Subject: Backup Tapes as a Records Series - Question from a Newbie

Hello everyone.  I haven't been a subscriber to this listserv since I left
my
position as Records Manager for Revlon in 1999.  After a stint consulting
and
then as an outsourced records manager for a law firm in NYC, I found my way
back home to Connecticut at a privately held pharmaceutical company.  With
my
commute changed from 2 hrs to 30 minutes my quality of life is certainly
better.  Hopefully my life expectancy has increased too.

Anyway, I do have a question, and it deals with establishing a record series
for "backup tapes" on a company's records retention schedule.  Over the
years
I developed a belief that backup tapes (in general and not linked to any
specific content) should not be categorized as a record series because they
are objects of a process (system recovery).  When a retention period is
assigned, it is done to support that process rather than based on the
content
of the information.  I also think that the whole process should be
controlled
by the IS/IT group responsible for the process.  That includes contracting
with a vendor to pick-up, store, rotate, deliver and destroy the tapes as
required.  

I have been in several discussions lately where this philosophy is being
called into question.  That backup tapes, even though assigned a short
retention period, should appear on the records retention schedule, and that
the corporate records management group should take responsibility for
sending
them to storage and retrieving and rotating them.  The main driver is that
RM
group has staff and IT doesn't.  This is new to me and I would like to find
out what other companies are doing.  What is the best practice today?  Do
the
revisions to the FRCP change things?  I have tried to find some instructions
/ best practices to give to IT for managing this process but haven't been
lucky.   

I will be happy to take this discussion offline if necessary.  I am happy to
know that this listserv is still going strong after all these years!


Carolyn A. Mariani
Sr. Associate Director, Information Management
Boehringer Ingelheim Pharmaceuticals, Inc.
900 Ridgebury Road
Ridgefield, CT 06877
203-798-4424
[log in to unmask]
 


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