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

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