Electronic Records Management

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Disaster Recovery Versus Archiving

Companies should consider how backups that are routinely made of all information for the purpose of disaster recovery will be handled. That policy will differ from the document retention and destruction (or archiving) policy, which is based on content.

Thus, while the document retention policy might say to keep information related to contracts for the life of the contract, and information related to employment decisions for three years, the disaster recovery policy would simply have one overall retention time period for the entire backup tape, which might be overwritten each night, once a week, or once a month, for example.

Whatever the retention cycle, it is essential that organizations carry out those plans to the letter. Otherwise, they may find that the handling of the information is questioned by the court or that all of the backup data is subject to discovery.

For example, in Murphy Oil USA, Inc. v. Fluor Daniel, Inc. (U.S. District Court for the Eastern District of Louisiana, 2002), the defendant’s e-mail retention policy provided for recycling of backup tapes after 45 days. However, the company did not follow its policy, the tapes were not recycled, and the defendant was required to produce them. In that case, the defendant at least did not have to bear the cost; the court ruled that the process would be at the plaintiff’s cost.

Similarly, in Rowe Entertainment, Inc., v. The William Morris Agency, Inc. (U.S. District Court for the Southern District of New York, 2002), the court decided that if the opponents wanted the documents, they would have to bear the $9.7 million estimated cost of producing all of the company’s backup tapes. That is not always how it works, however, and producing backup copies of an organization’s entire computer system can be extraordinarily expensive, especially when all of the files must be reviewed for privilege.