• Recent Case Law Highlights Hidden Risk Associated with Legacy Data
  • May 24, 2011 | Author: Dennis R. Kiker
  • Law Firm: LeClairRyan - Richmond Office
  • Corporate attorneys don't think too much about backup tapes. Many don't believe that their companies have a problem with backup tapes, and most believe that they simply are not an issue, since courts have long considered backup tapes to be "not reasonably accessible" when it comes to discovery. It may be time to think again.

    The vast majority of companies have backup tapes, lots of backup tapes. Tape remains the predominant storage media for backup, in large part due to its portability and low price. In fact, a recent study by IT analysis and business strategy consulting firm Enterprise Strategy Group (ESG) indicates that 82 percent of organizations still utilize tape to support some or all of their onsite backup processes. This figure has decreased by only 5 percent since 2008, when ESG last conducted a similar survey. In many organizations, the numbers run in the hundreds, thousands, or even hundreds of thousands of backup tapes, each of which could contain millions of files and email. Quite often, the legal department is unaware of the extent of the legacy backup tape archive.

    Having backup tapes is only a problem, however, if you have to access them. Only a small percentage of data stored on backup tapes is ever really needed; by most estimates, less than 1 percent of each tape contains relevant information. However, identifying relevant information on tape has historically been difficult, requiring the restoration of all data on the tape. The time and cost of such a project has generally outweighed the value of any information that might be recovered.

    It is for this very reason that courts and commentators long characterized backup tapes as "not reasonably accessible," making them "off limits" for discovery in most cases. So, for the most part, corporate litigants think about backup tapes only for preservation purposes, if at all. Things are changing though.

    Recent years have seen the emergence of a solution to the problems of tape backup and data archiving in the form of tape remediation technology and services. In addition, courts and commentators are beginning to question the long-held "inaccessible" characterization of backup tapes. In Goshawk Dedicated Ltd. v. Am. Viatical Servs. 2010 U.S. Dist. LEXIS 137550 *5, n. 3 (N.D. Ga. Oct. 4, 2010), the court noted that one party had relied on Index Engines technology to collect data from backup tapes, "substantially reduc[ing] the direct cost of the ESI search process" and "similarly reduc[ing] the disruption of day-to-day business activities."

    There is also a silver-lining here: leveraging technology and defensible business processes to disposition legacy data kept on backup tapes can often show an immediate and positive return on investment. So, companies have an opportunity to save money and reduce risk at the same time. That is an opportunity that does not often present itself.