New Ways to Manage eDiscovery Costs for Backup Tapes
By Michele Hope
Finding eDiscovery data in backup tapes is not a smooth, repeatable or manageable process. However, it does not have to be that way.
Legal departments often work with IT teams to produce relevant electronic data in response to eDiscovery requests. However, just because the legal team is used to doing this task does not mean it enjoys the process.
Legal teams are only too aware of the factors that can make eDiscovery costs skyrocket. One of these is the scope of discovery, which often extends to a company's legacy backup tapes. Despite the legal and IT teams' best efforts, costs can mushroom to include the recreation of now-obsolete software and hardware environments upon which the backup tapes were based. It can also involve high resource expenses when in-house IT staff must search for and restore data over an extended period. The crux of the issue is that finding eDiscovery data in backup tapes is not a smooth, repeatable or manageable process. However, it does not have to be that way.
Organizations need to understand the current state of tape in the enterprise, as well as its continued use for eDiscovery. Only then can companies explore new ways to reduce hassle and better manage the cost involved with tape-based eDiscovery.
Tape Is Still Alive in The Enterprise
Part of the reason for tape's continued enterprise popularity is its undeniably low price point and ability to be stored long-term. Advances in tape technology, such as LTO-file system based software, and enhancements in tape capacity (the new LTO-7 tape format can hold up to 6 TBs per tape), also make tape an attractive option.
However, emerging technologies have caused tape's role to change. Many companies have moved away from tape for short-term backup and disaster recovery, preferring to save data in the cloud or to their own local disk-based systems. Since disk systems and the cloud can be costly storage options as datasets increase, though, many companies continue to favor tape as a lower, more economical tier that is part of their larger tiered backup or archive infrastructure. Tape also ages better than disk storage and is less prone to data corruption, making it a reliable option for long-term storage.
For instance, backup data might be initially stored on a disk or in the cloud. After the data reaches a certain age, it may be transferred to tape as a long-term, offsite archive. This allows the data to be preserved for compliance or legal reasons, or even as a form of just-in-case insurance.
Through 2012, tape was still the primary storage medium for more than half of corporations that needed to archive 500 terabytes (TB) of data or more. The Enterprise Strategy Group found 54 percent of organizations with more than 500 TB of data use tape for offsite archiving, and 35 percent were likely to use tape for onsite archiving, too. The source noted 42 percent of organizations storing less than 100 TB of data were also using tape for offsite archiving.
Is Tape Less Probable for eDiscovery Today?
This background often leaves organizations with many questions. Despite the continued use of tape, how much of an eDiscovery issue do backup tapes pose today? In an age of reliance on local disk-based and cloud solutions for backup and recovery, is there still a need to discover data on backup tapes? Could proportionality, undue cost and hardship be a way to avoid this expense? What about the latest refinements to the Federal Rules of Civil Procedure (FRCP)? Do they make it easier to avoid backup tape discovery costs?
Unfortunately, despite the latest FRCP changes, judges continue to exercise discretion when determining whether the discovery of corporate backup tapes is necessary for a particular case. In one InsideCounsel commentary, the author explains that, "the reality is, while the new rules create an opportunity for a much more rational and predictable approach to eDiscovery issues, those that prefer the old approach will be working to maintain the status quo. There remains significant room for interpretation in several important areas of the new rules, and how those areas are interpreted will dictate whether spoliation sanctions continue to be an ever-present and common threat to corporations."
Until a new case law emerges to negate the need for backup tape discovery, the use of tape will remain a sizable eDiscovery cost for legal teams to plan for and manage as best they can.
Steps to Better Manage Tape eDiscovery Costs
Despite the time and money involved in tape-based eDiscovery, there are ways to ensure companies do not get more than they bargained for.
First, do not make IT departments do an expert's job when it comes to finding data on backup tapes. Look for outside experts who are already versed in the latest methods to defensibly restore and retrieve tape-based data from current and legacy backup formats. Experts can often restore data in a fraction of the time it would take for the IT team to do so in-house, and do it with a defensible, repeatable process and at a predictable cost.
Another way to manage costs is to go on-demand – a valuable benefit using a managed program. In the age of digital, on-demand cloud services, it might be surprising to learn there are on-demand managed tape restoration services that can search restored tape archives. By converting variable and ad-hoc IT discovery costs to a fixed, monthly OpEx amount, legal teams can better anticipate and budget for discovery costs. They can also reduce one of the highest costs of preservation. According to a 2014 report on preservation costs prepared for the Civil Justice Reform Group, up to 90 percent of the total cost of preservation is the variable cost involved when non-legal employees must find data in response to a litigation hold.
Finally, organizations should aim for repeatability, defensibility and proactivity in their eDiscovery processes. Legal teams that are tired of being on the defense when fielding the latest litigation requests can start reclaiming their power over the process of tape-based eDiscovery. Look for managed restoration services that stand by their own repeatable processes for the defensible restoration of tape data. Also, select services that prove chain of custody with auditable, end-to-end eDiscovery procedures.
By following these steps, organizations can keep the costs of eDiscovery down to a manageable, predictable amount, even when the process involves searching through years of backup tapes.
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