eDiscovery:  Backup and Cloud Safeguards

By Joseph Raczynski

“Not preparing for eDiscovery will cause your company to spend millions meeting an eDiscovery request via a lawsuit or investigation or worse losing a multi-million or multi-billion dollar law suit because you cannot retrieve data in time to satisfy a judge.”

These were the ominous words from Curtis Preston, CEO, of Truth in IT, Inc. who presented at an electronic backup and cloud conference called “The Truth About Backup.”  He led a session delving into implications of storing information and eDiscovery.

Adverse Inference

In a case which highlights the storage issue, Morgan Stanley was sued by Coleman Holdings.  Morgan Stanley had to produce emails, but the issue was that they had backup tapes in a wide array of backup and tape formats, as well as varying types of email, e.g. Exchange and Lotus Notes.  As a result, Morgan Stanley asserted that “email searches could be conducted only at enormous cost,” while the judge said “archive searches are quick and inexpensive. They do not cost ‘hundreds of thousands of dollars’ or ‘take several months.’”  Another issue that befell Morgan Stanley was that 1,423 backup tapes appeared after they said they had searched everything.

The result Morgan Stanley simply had too many systems that were not easily aligned and searchable.  Technically, the adverse inference order entered March 1, 2005, “reversed the

burden of proof on aiding and abetting and conspiracy elements [of the claims against Morgan Stanley] and included a statement of evidence of [Morgan Stanley’s] efforts to hide its emails to be read to the jury, as relevant to both [Morgan Stanley’s] consciousness of guilt and the appropriateness of punitive damages.” March 23, 2005 Order at p. 9.

Coleman Holdings was awarded $1.57B because Morgan Stanley had very poor backup policies and procedures.

Save Your Company Money:

Since not having data readily accessible and retrievable is a liability here were a few points they outlined to assist:

  • Keeping multiple years of data in backup format costs more than keeping it in archive format due to the duplicate nature of email
  • Backups also cost much more to search than archives if you are given an e-discovery request
  • If keeping emails (or any data) for more than a year, it should be in an archive system, not a backup system
  • You must have an archive system that allows you to search in a matter

Other Highlights:

  • Do not keep anything unless you have reason to
  • Establish an expiration/deletion policy
  • Document the policy
  • Needs to include actual erasure, not just expiration
  • Follow the policy
  • Document that you’ve followed the policy
  • Do this now, before you get the request

The primary theme throughout this discussion was preparedness.  Establish clear policies build or use cloud systems that allow users to conduct simple searches to surface data that is relevant.  The key, remember that backup is to restore data completely lost and archiving is for retrieving data which is used less frequently but is still fully accessible.






About Joseph Raczynski (149 Articles)
Joseph Raczynski Technologist/Futurist Joseph is an innovator and early adopter of all things computer related. His primary focus is around the future of technology, and speaks globally about Legal Technology, Cybersecurity, Blockchain, Artificial Intelligence, Cryptocurrency, and Robotics (drone technology). He also writes about the future of technology as it impacts the crossroads of our personal and professional lives, especially in the legal sector. Under the umbrella of Thomson Reuters, The Hearing a Legal Podcast, Joseph hosts a podcast with a technology focus. He also serves as a mentor with the Columbia | IBM Blockchain Accelerator and guest lecturer at Fordham University School of Law, as well as a Cybersecurity Committee Member at the University of South Florida. Joseph founded wapUcom, LLP, consulting with companies in web and wireless development. As a side project DC WiFi was created to help create a web of open wireless WiFi access points across cities and educate people about wireless security. Currently Joseph is with Thomson Reuters Legal managing a team of Technologists for both the Large Law, Corporate, and Government divisions in the US. Joseph serves the top law firms in the world consulting on legal trends and customizing Thomson Reuters legal technology solutions for enhanced workflows. He graduated from Providence College with a BA in Economics and Sociology and holds a Masters in eCommerce and MBA from the University of Maryland, Global Campus. You can connect with Joseph at JoeTechnologist.com or JosephRaczynski.com or onTwitter @joerazz

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: