The Remedy for eDiscovery Angst – Backup Tapes

The major concerns surrounding eDiscovery are typically cost, time and reliability. How to get a accurate collection of relevant data within the court appointed time window without breaking the bank. The solution is actually what some mistakenly think is the thorn of all eDiscovery projects. Backups tapes have traditionally been synonymous with the undue burden argument; time consuming, painful and expense to discover. However direct indexing technology make this argument mute. Not only is tape discovery quick and affordable, tapes also contain an unspoiled, point in time copy of all the data in question.

IT teams capture corporate data from the network onto backup tapes daily. In the case of a catastrophic failure, or even user error, specific files and email can be restored from the backup environment. Therefore, every file created or edited and every email written is copied to a secure, typically offsite, location for safe keeping. These backups represent “point-in-time snapshots” of the files and email on the network and servers. So the email in a custodian’s inbox on June 30 or a contract created by a specific user, including revisions of this file, has an identical copy backed up by IT every day.

The ESI that is backed up to tape is secure and unspoiled. Users do not have access to this data. It cannot be modified and is a 100% accurate representation of what existed on a specific date. In order to be confident that no spoliation has occurred, instead of requesting data from the online network, legal teams should be issuing requests for data that was backed up to tape on the dates in question. No preservation letter is needed; the data is already preserved by the IT department during routine backups. Access to this data is easy, it is all collected and exists on tapes that are typically stored in offsite vaults. Additionally the request for this data is far less invasive as it will not require access to live corporate networks for the collection.

Since secure, preserved data exists on offline backup tapes, why are legal teams still issuing preservation letters for easily corruptible online data? Because, previously, backup tape data wasn’t easy or cost effective to access. As a result, legal teams have been forced to work with the more accessible data that exists online.

New technology now makes data on offline backup tapes accessible. Data that is locked away by IT during the routine backup process previously required specialized skills and great expense to access. The tapes are generated using proprietary software that collects the data and places it into a backup container that is copied onto tape. This process has required this software to gain access to the data through restoration of the content, typically by 3rd party specialists. This is why in the past it was expensive and time consuming to gain access to files and email on old backup tapes. However, this is no longer the case.

This data is now easily available using new automated tape discovery tools. When ESI is required, simply request the appropriate backup tapes from the client. These tapes are typically dated, so it is not difficult to find the relevant tapes for a specific timeframe. The tapes are then automatically scanned and indexed, so that they are searchable. Legal teams can then specify the specific metadata and content they require. For example, if you require a specific custodian’s mailbox, or a copy of a contract from June 2000, or even a general search of specific mailboxes to look for sensitive keywords, all data is now easily accessible via simple query terms. The relevant emails and files can then be extracted from tapes quickly and economically without any spoliation. The original backup software is not required, in fact it does not require any specialized technical resources to get the job done.

As a result of this new approach, legal teams can now be confident they have the data they need to support or defend against a law suit, and be sure that it is accurate, as it is a snapshot of the content as it existed on the date required. Anyone who wants to tamper with or influence the outcome of a case no longer has access to potential evidence. The method of leveraging backup tapes for ESI preservation is far more accurate and secure than the traditional method. No longer do you need to issue a preservation letter – just ask your clients for their tapes. They are already preserving what you need. Not only does this new approach eliminate the risk of spoliation, but technology also remedies the worrisome turn around time and cost of eDiscovery as well.


  1. Jim, your approach makes sense to me (someone who hasn’t taken part in eDiscovery). How far back in time can one expect to find usable back ups? There was a time when IT departments had a finite number of daily tapes and just recorded over the oldest tapes so that only a certain number of days’ worth were available. I am assuming from your discussion that this practice has largely changed, but I’m wondering how long ago.

  2. The number of tapes a company would have in offsite storage really depends on how they manage their data. With a strict data retention policy then IT departments should have an environment in place to keep what needs to be kept and destroy what does not. However when dealing with backup tapes, most IT organizations do not know what is on the tapes so they can not enforce this policy on tape content. Therefore they end up saving them all. We have clients with tens and hundreds of thousands of tapes in offsite storage. The only way to make any decisions about the data on these tapes is to index them, discovery the content and extract what is required. Once this is done a decision can be made that follows corporate policy. Otherwise they will continue to sit in storage and will remain a liability.