Shedding Light on Backup Tape E-Discovery: New Strategies for Backing Up Data and the 2006 Amendments to the U.S. Federal Rules of Civil Procedure Have Led to Costly E-Discovery Nightmares for Organizations. A Few Simple Steps Can Help Organizations Avoid These Horrific Situations

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The rise of electronic discovery has shed light into areas of IT back office operations previously known only to system and network administrators. The practice of making backup copies of computer data is a well-established practice that protects against the loss of data should computer hard drives fail--an inevitable event.

Traditionally, these backups have been made to tape media, as that represents the best balance between cost and efficiency to achieve the objective of copying large quantities of data to the backup media in a reasonable amount of time. Backups usually occur after hours, because files in use by users are generally locked and will not be copied to the backup media. A backup represents a snapshot of the computer at the time the backup was made.

Original Intent of Backups--Disaster Recovery

Backup tapes are best suited for disaster recovery. Under that scenario, an organization will keep the most recent two or three backups of its computers because if the hard drive crashes, the goal is to restore the most recent available data. Assuming a complete backup in a single backup cycle, if the first backup is bad--due to a tape failure, for example--the next good backup is utilized. After the third or fourth backup, the tapes are recycled or otherwise reused or replaced.

If an organization uses backup tapes in this manner, these tapes will never be subject to electronic discovery. By the time a lawsuit is filed (or the duty to preserve information for the suit arises, which can be before the suit is filed), the data is long gone; the tapes having been recycled many times over.

Common Use of Backups--Data History

However, the far more common practice in the IT backup environment is to keep certain tapes for longer periods of time. Assuming a five-day work week, nightly backups are made Monday through Thursday, and Friday is designated as a weekly backup.

While the Monday-Thursday tapes are reused every Monday through Thursday, the Friday weekly tapes may be saved for the entire month and then reused for the next month. Or, they may be saved for several months before being recycled.

A monthly tape is made at the end of the month, and the monthly tapes may be saved for the entire year before being recycled. Or, they may be kept for several years.

Annual tapes can be made at year-end, and they may be saved forever. This is called the "grandfather, father, son" tape rotation protocol, and it is one of the most frequently used protocols.

One vendor has stated that "by incorporating a mix of daily, weekly, monthly, and quarterly backups, you can be sure that you have a complete history of your data from various points in time." However, capturing data history is an entirely different purpose than preparing for disaster recovery.

Backup Tapes Subject to E-Discovery

Under the broad definition of "electronically stored information," or ESI, as provided in the 2006 amendments to the U.S. Federal Rules of Civil Procedure, these backup tapes have become the subject of discovery. The original purpose of backup tapes as insurance against a hard drive crash has been transformed into something else altogether--the nightmare of backup tape electronic discovery.

Backup tapes have affected electronic discovery in ways entirely unanticipated from when they were used for their original purpose. Organizations now have to consider the ramification of backup tapes relative to the following e-discovery issues:

1. The duty to preserve information

A long-standing principle in the court system is that a litigant must keep information relevant to a lawsuit. In recent years, this has been expanded to require potential litigants to keep information if they have reason to believe that a claim will turn into a lawsuit.

The scope of the legal hold has extended to backup tapes--in a big way. …