> From: Brett Wise <[log in to unmask] <mailto:[log in to unmask]>>
> Subject: Retention on Back Up Tapes for Disaster Recovery
> 
> Hi everyone, I was hoping that someone out there can provide a resource(s) for a current challenge.  My organization is completing its revised Retention Schedule, and one item that is being addressed is the retention of back up tapes for disaster recovery.  

Brett, while not a records manager, I have been known to attend their parties.

And in true records management form, I would not have trouble with Patrick’s factual presentation. But apparently we live in the Land of Bizzarro World where our Legal System, never having read any publication by a records manager, has created a new reality. My point of view is from 20 years of reading Peter’s news articles and legal cases.

Herein are certain quotes from Patrick that I view totally differently from my experience in protecting records that all of a sudden move into the classification of “We can’t lose these now!!”  (I am not saying I am right or Patrick is wrong but there are different factors at play when Legal shows up with a subpoena.)

>> - The need to stop rotation of backup media in the event of litigation.
>> This can become very expensive, requiring the purchase of additional backup
>> media as well as the cost of maintaining the backup media.

This would seem simple right up to the point where the Courts ruled that if you ever expect that you might be involved in litigation you are now required to hold onto everything. The rotation of media can be stopped per Court order or maybe by the fact that you have a reasonable expectation you will be sued in the future.  So if you reasonably expect to be sued …ever?? then you might be under a legal hold now!

My son is a medical Doctor and is taught from Med School on….. that all doctors will be sued.  Most suits will be frivolous and lose; but all will experience litigation. So every medical practice given that they teach in med school that no matter how good you are, you will be sued, can reasonably expect be required to hold onto all records.

Johns Manville (asbestos) is the poster boy for this.  No matter what or when they disposed of records, emails or tapes in back up…… they were wrong to destroy them.

Electronic records are records. Records that only can be read by a machine are still considered a record. 

“Electronic Record - A record on Information Technology Equipment or Communications Equipment or on off-line media such as computer tape, disk drives, DVD’s CD’s etc.”
and;
“Electronic records and the applications that they run on, stored on premises, in servers or other storage hardware should be protected by duplication or mirroring at an offsite location.” (e.g., Cloud)

Let me know what the Cloud provider says to you when you notify them that all of your records in the Cloud are under a legal hold. I would love to hear their response about their liability in producing all of your records along with a “Datamap” of where the records are in their system.

>> We don't include backup data on our retention schedule. Backups of the
>> enterprise systems are considered an operations process and we document
>> that as such. 

Judges don’t seem to care what organizations or records managers define as their procedure. When they issue the requirement for a “Datamap” in 99 days and a legal hold that can span years and years and include sanctions for spoliation, you play be their rules.  (At least until the appeal.  then it is still their rules but now it will be a different set of rules.)   E-Discovery is a crushing weight and law firms love it.

>> Many organizations that have gone to the cloud or other high availability
>> systems do not maintain backups, as such. Many cloud and other high
>> availability systems rely on real time updating of production systems,
>> maintaining a mirrored system that is geographically dispersed. The nature
>> of these systems drastically reduces the need for traditional backups.

I totally disagree here. The Cloud has no proven reliability. Viruses, Malaware, Ransomware and even the software license which limits the requirements to even return the data after a period of time. What goes in the Cloud and the Cloud’s ability to return that same data precisely and prove its accuracy has not been tested in the long term.  What if your Cloud vendor goes belly up?  Or as happens in the offsite storage industry, the merger and consolidation phase envelopes them and they no longer honor your original agreement. (Who is reading these contracts and their disclaimers? The same people who let Hostage Fees climb into $20 to $30 per box range? Do you forfeit the electronic records to their data-mining operation after 5 years.)  The fact that Cloud vendors want this data to mine shows they expect to find electronic records that can track your behavior, purchasing habits, etc.  They think what it is in the Cloud is a record of your behavior past and predictive.

There is no long term history on the Cloud; and, those who stop making back up tapes will look like fools.  Remember when the Cloud operators told us that tapes and CD’s lasted forever.  Then we found out it was only 5 years. (It is the same people, they just started new companies. With a whole new set of misrepresentations.)

The Cloud offers an extremely high error rate compared to tapes, is 15 times more expensive that storage on tape and retrieval is now starting to raise alarm bells.  Storage is super cheap. Access to that data and return for a full back up is extremely costly but no body talks about that. Some are out their cautioning on this.

>         The cost of Digital Storage over time in a format that is online is insupportable. https://www.fsl.cs.sunysb.edu/docs/unesco12/UNESCO2012-storage-econ.pdf <https://www.fsl.cs.sunysb.edu/docs/unesco12/UNESCO2012-storage-econ.pdf>
Here is another issue the Courts make troubling:

>> - If data exists, it may have to be produced and searched in litigation.
>> Having large volumes of stored media on hand can lead to very expensive
>> litigation expense.

Judges sanction people for not having the data as well.  They just fine you every day until you produce it.  Or if you don’t have it?? ….. maybe they issue a Summary Judgement.

>> That argument was to be made if an opposing litigant
>> demanded backups to be preserved. There is an entire body of discussion
>> around “burden" and "proportionality" when it comes to e-discovery.

And Patrick is right, and this might be the saving grace. But attorneys tell clients, the more prepared the client is for litigation, the lower the E-Discovery costs.  Those who are unprepared may be forced to settle due to their lack of preparedness even if they are not at fault.

Everything Patrick said is exactly right until you end up in front of the Judge. Then it is like being arrested in a Third World Country.  The laws are their laws then.


Hugh Smith
FIRELOCK Fireproof Modular Vaults
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