Just a what if, intellectual discussion:

Snips from Larry's post:

>>> Arguing Back-Up Tapes Are Not Reasonably Accessible  The Defendants
>> explained > the responsive data was on 5,880 back-up tapes.  
>>> Further, it would take 1.5 hours to catalog a tape and 1 hour to restore (or
>>> 14,700 hours).

I take a different slant on this.  The Judge is taking the approach that what is not on line is not accessible. Since IT centers tend to keep a great deal of information on line and in searchable format then this is easily accessible.

What is on a tape is not "as accessible", the difference in access time is questionable but he draws a line and says, if it is on tape and stored in an archive then it is not as accessible and more of a hardship for the defendant to access. It is an arbitrary line but why not?

The reality is that companies without great records management keep not only the current material on line but older material that they may not need but "Legal says hold on to it"  so they do.  It may not be a readable format, they may not have software for it but Legal say "God forbid we should be viewed as destroying records".  (That is why any trip to an offsite storage company's media vault will reveal 11" reals, old Sony cassettes, and other obsolete media.)

In the offsite storage industry the fact that a judge considers back up tapes as not evidentiary is a selling point.  CFO's will jump on this as a benefit. Convert your non-necessary information to tape and remove it from harm's way of a hacker getting into it and also away from a legal action.

I talked with some experts from several mega huge data processing companies and they say that holding everything on line is tremendously expensive and backing up and archiving to tape, the less accessed data, is a big cost saver.  The goal is to not have this as easily accessible as the information held in the electronic format.

Lawsuits now look to how prepared a defendant is to defend themselves.  They become a target if they are not as prepared as the plaintiff who had months to plan a strategy.  The phenomenal cost of allowing a Plaintiff to access all the data is a hardship.  It forces settlements due to the cost of defense outweighs the settlement amount.  The Defense attorney can probably calculate that easily to the dollar.  Doctors and hospitals do it all the time because the winning of the suit is a Pyrrhic Victory.  The requirement for Data Mapping within 99 days and full electronic discovery is costly as everyone involved is a high priced consultant.

The argument here is that back up tapes are not records has been posited many times. Why should a judge now declare them as such?

Caveat:  I sell vaults for protecting archival tape so I am admit I am biased here.  But are my arguments wrong.  I am siding with a Judge here.  And with RM's who state that back up tapes are not records and cannot be classified as such due to their random storage.  

>> If, for example, an organization has a policy that all e-mail that is a
>> 'record' be transferred to an ERMS and non-record material left in either in
>> boxes or sent mail folders is automatically discarded after 180 days, then
>> the backup tapes should not be held longer than that.  

If a retention schedule is 180 days and the company is entitled to destroy it at that point, but the information is on a tape that has data on it like jelly beans in a jar, why should a plaintiff have access to it just because it exists in a less accessible format.  I would argue that records past their retention schedule should be disallowed for discovery.  This is punishing companies for failing to have a good records management plan and there is no legal mandate that everybody have the same level of expertise in records management.

>> Whatever is on a 6 month old tape should be completely useless and using it to restore a
>> system would result in overwriting data that has subsequently been modified
>> or destroyed 'in the course of normal business'.

This is true but many companies do this as a safety measure.  Why not call for the shredding of all paper records that already are on the data system?  They all were created with a computer so the paper is useless for 90% of the stuff in the boxes. Yet they store this for years.  The average life was 16 year just a decade ago, but today the average age is probably somewhere between 3 and 7 years depending on how progressive the company.

>> If Records Management writes a policy that
>> includes a retention schedule, and the policy states that 'reference copies
>> can be discarded when no longer in use, but shall not be retained longer
>> than record copies' and/or what backups represent and what their intended
>> use is, IT procedures and practices should be consistent with those.

One, IT guys don't pay attention to anything but speed and density. Two, since they view their tapes as disaster recovery tools, not records, they ignore these policies Three, it would be monumentally expensive to keep culling through tapes to delete files that are ready for destruction.  There is a disconnect between records management, IT and C-Level officers in 95% of all companies, if records management even exists.

Hugh Smith
FIRELOCK Fireproof Modular Vaults
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