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RECMGMT-L  June 2007, Week 4

RECMGMT-L June 2007, Week 4

Subject:

Re: Back up Tapes/ Zubulake/ Industry Direction

From:

Hugh Smith <[log in to unmask]>

Reply-To:

Records Management Program <[log in to unmask]>

Date:

Mon, 25 Jun 2007 12:25:24 -0400

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (132 lines)

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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