To Recycle or Not to Recycle, That Is the Hot Backup Tape Question

摘要

On the first day of a filed or threatened litigation against large corporations, the conversations with in-house and outside counsel invariably turn to how to preserve relevant emails. Part of that conversation focuses on whether the corporation's duty to preserve requires not only the collection of current email still under a user's control but also the preservation of emails still available on backup systems and created on a going-forward basis. One of the ways that a going-forward preservation can be accomplished is by keeping all future backup tapes by suspending the recycling of backup tapes. As explained in this article, if accomplished in this manner, preservation can involve staggering costs and significant future exposure for the corporation. Many counsel believe that keeping all backup tapes is technically and legally required. This article addresses whether that is so.