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Ours is a nation of laws and precedent -and these have far-reaching ramifications in even the most remote field. In data backup, the flagship case is the March 2005 ruling in Coleman v. Morgan Stanley in Florida's Circuit Court. (You can find an excellent summary of the case on LexisNexis here).
The Court's rulings were extensive and significant for many reasons, including the substantial damages awarded. the Court issued a ruling on March 1, 2005 that found a number of abuses in the process of discovery - the part of a legal battle in which each party goes through their documents looking for information relevant to the lawsuit. LexisNexis summarizes the abuses below:
- Morgan Stanley's undisclosed awareness at some point prior to May 6, 2004, of 1,423 backup tapes that had not been processed for inclusion in the Morgan Stanley archive to be searched in completion of the production on May 14, 2004;
- Undisclosed discovery in 2002 of 738 eight-millimeter backup tapes with email dating back to 1998 and lack of processing of those tapes to include their contents in the Morgan Stanley archive to be searched in the course of completing the May 2004 production;
- Presence of unsearched data in Morgan Stanley's archive system;
- Discovery of 169 DLT tapes in January 2005;
- Discovery of more than 200 additional tapes on February 11 and 12, 2005;
- Discovery of a "script" error in Morgan Stanley's in-house program to search its archives that prevented Morgan Stanley from locating responsive email attachments; and
- Discovery by Morgan Stanley on February 13, 2005, of a "script" error that affected the gathering of email from users of Lotus Notes (mostly employees of Morgan Stanley's Investment Banking Division, according to the Court's March 1, 2005, adverse inference Order, at p. 8 ) that resulted in at least 7,000 additional email messages that appeared to be responsive under the Agreed Order but had yet to be reviewed fully for responsiveness and privilege.
What does this mean for your business? Among other things, every business is responsible for keeping their records and backups. What's more, those backup tapes you have forgotten about could very well contain pertinent information that a Court could require you to produce, irrespective of the costs or reliability of the media. In the September, 2005 edition of LawPro Magazine, they estimated the costs to restore the data from a single tape stored offsite to be as high as $3000 per tape. If your business ever found itself in such a situation, wouldn't it be much better to have reliable, unlimited restores from an online backup provider than sort through hundreds of old unreliable tapes?
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