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Backup Downside

The corporate legal department needs to be involved in the creation of the corporate backup plan. The downside of corporate backups is the discovery process, where backup tapes can become fair game for the other side. It is becoming more and more common for document production requests to include information stored in electronic form, including that stored on backup tapes.  

There is little question that a corporate defendant is responsible for searching its electronic archives for information relevant to the litigation. What is surprising is how often the courts are saying that the corporation itself must foot the bill for finding that information. The fact that it is difficult or expensive to do is seen as the corporation's problem, not the problem of the party requesting the information. 

Therefore, it is critical that the legal department work with the IT staff to ensure that the company's record management and backup systems have built-in record retention policies and that backed-up information is routinely and finally destroyed, just as paper files would be. You should also have a plan for separating privileged information so that you can minimize the burden and expense of separating privileged information from discoverable information. 

There are probably very few companies that are actually doing all of this effectively today. Everyone is learning about these implications of the electronic age, and it will take some time to figure it all out. The technology for discovering electronic information and for searching that information for relevant content is getting better all the time. While many litigants today simply avoid dealing with electronic information (unless the case is large enough to justify the expense), the search technology will continue to get better, making it feasible to do comprehensive searches of a company's stored information even in smaller cases. 

The potential expense of electronic discovery will be used by plaintiffs' lawyers to put pressure on corporate defendants. If your company is not prepared to handle electronic discovery efficiently, the pressure to settle cases that you might not otherwise consider settling will increase. Obviously, this works both ways. You need to be sure that you and your litigation counsel are taking advantage of electronic discovery when appropriate.  



Last updated: 05/04/01



Copyright 2001-2005 David A. Munn