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Judge Scheindlin subtitled it that (Zubulake Revisited: Six Years Later). And lemme state at the outset that I am not an attorney and can't spell JD most days. 

<snip>For this reason, backup tapes are almost always subject to discovery.</snip> Yes, but I thought part of the point of Zubulake and its subsequent impact on Sedona and thence FRCP was to minimize the need to discover backup tapes absent evidence of poor discovery and/or spoliation. 

<snip>institute practices that ensure data is stored
in a manner that allows backups to be made that are consistent with the
retention periods of data that remains live on the system, or that the
practices for retention of backups ensure they are recycled PRIOR to any
retention period ending, which in many times defeats their purpose for
recovery of systems that fail.</snip>

Backups are designed for disaster recovery and business continuity. I can't envision the circumstances where a particular backup tape would need to be retained for the longest period of time of data on the system. The data should be backed up for the length of time the records are to be retained, but with overlapping backup tapes I routinely see and suggest backup tape retention periods of 30-90 days and I am by no means alone. Maybe this is a semantic quibble and we're in violent agreement?

<snip>
This is exactly why the whole concept of "e-mail archiving" is such a
fallacy as a good business practice.  The majority of these systems are
designed to capture EVERYTHING, records and non-records, either on receipt
or on generation and store it all in a digital haystack to be searched
later.  If during a meet and greet between a plaintiff and defendant it is
divulged that this exists, someone is going to be licking their chops when
the data maps says "all e-mail is deleted every 30 days", but the opposing
party knows you have this haystack.  And if it's YOUR PRACTICE to maintain
this and not clear e-mail out of it in the same time frames as it is deleted
from desktops, then not only is it discoverable, but you will bear the
burden of cost for the discovery.</snip>

I disagree. First, while most of them are designed to do that, many of them are also designed to allow users to select email records to save, with the rest being automatically discarded after some period of time. Yes, this means users have to be trained - just like they are with any other type or format of record or information. 

Second, many organizations implement this in a zoned approach where everything is saved for, say, 1-2 years to address ease of implementation and production needs, but then users can/are expected to identify email records and move them to a more appropriate storage location such as an ERMS. I'd argue that with proper training this actually reduces the amount of email potentially discoverable - because you end up with 100% for 1-2 years and then, what, 3-5% of anything older on average? Cf. requiring users to manage all of their email appropriately, and monitoring that, to the tune of 150+ messages per user per day. 

Third, how is this any different from backup tapes? I imagine the discussion would go like this: 
Party 1: has an email archive (or backup tapes, or an ERMS, or etc.)
Party 2: Starts licking chops, asks for everything since the beginning of time or at least the beginning of the archive
Party 3: Files motion indicating request is overbroad, haggling commences as to potential custodians, time scope, keywords for searching, etc. 

Certainly the data map should NOT say "all e-mail is deleted every 30 days" in that instance - but I submit that any data map that says that today, for almost any organization, is flat-out wrong either on its face or will not pass the laugh test. Surveys routinely show that 99+% of organizations transact some business, commercial or otherwise, using email. And any organization that says it doesn't is probably going to face some pretty stiff examination as to its place within the >1%. So again, I think we're violently agreeing with what you wrote, if not with what you meant. But I disagree with the conclusion. The robust market for email archiving certainly seems to indicate that there are a lot of legal folks, compliance folks, records managers, and others who see quite a bit of benefit to it and who believe that the benefits outweigh the risks if it's thought through and implemented appropriately. 

Respectfully submitted on behalf of myself and no other company, organization, association, entity, or board of directors,

Jesse Wilkins, CRM, CDIA+, ecmm, emmm, ermm
[log in to unmask] 
(303) 574-0749 direct
Twitter: http://www.twitter.com/jessewilkins 

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