In a recent case, Digicel (St Lucia) and other companies v C & W and other companies  ER (D) 226 Oct, the extent of a search carried out for eMail records was questioned by Mr Justice Morgan.
One party had conducted a search of live and readily accessible data sources but had consciously excluded the backup tapes routinely retained as part of that companies archive policy. Their rationale for not looking at these tapes was that the cost of doing so would be disproportionate to the likely value of what would be found.
Expert testimony was used to outline the difficulties that tapes can present and how expensive it can be to process these in order to acquire email and other records.
Tape is almost universally used by companies of all sizes to hold copies of their business files, programs and records. This includes all of their financial information, all business documents and – increasingly importantly – their eMails. These copies are then routinely stored away to serve as archive records to comply with statutory demands.
Tapes are ideal for this since they are small, highly portable, inexpensive and hold very large volumes of data and what this means is that a company will have stored tapes that contain copies, usually taken every month for a period of several years, of emails and other critical business documents and communications generated by that company.
This information contained may be absolutely crucial to the success of a case.
Whilst tape has been almost universally adopted as the standard media on which to retain long-term archive copies of electronic information, the systems employed to write data to tape were never intended to meet the needs of eDisclosure.
Backup and restore systems – used to copy data from the computer system to the tape – were designed to make it easy to quickly rebuild a system if an unplanned event or disaster meant that data was lost. The emphasis was on recreating the entire system as it was immediately before the disaster struck and so the data was written to tape in a way to make this as easy as possible rather than making it searchable.
The consequence of this, from an eDisclosure perspective, is that to access the data that is needed for a case using conventional methods you have to recreate the system exactly as it was when the backup was created. This is one of the areas where unnecessary cost can be incurred.
Since, if you choose to use the conventional method, the entire system needs to be recreated before you can start looking for specific files, it means that if you are looking for information from a number of months, you will have to rebuild each and every month – again a major cost overhead, requiring significant amounts of free disk storage and a great deal of expensive time and resource.
However, the real barrier to gaining rapid and effective access to data stored on tape is being able to find the necessary software and hardware required to read the tapes.
Since the need for disaster recovery was identified a global industry has evolved servicing that need. This has resulted in the release of hundreds different backup systems capable of running on any one of dozens of different tape systems. Ever striving for more efficient and improved systems embarked on – and remain locked in – an apparently endless cycle of upgrade and replacement of these backup systems.
What this means is that when you need to access data stored on tape you will almost certainly be faced with tapes that contain more than one format of data and, where the timeframe is greater than 12 months, it is common to have several different versions of backup software and drive types with which to contend.
The key to cost effectively accessing this evidence-rich media and of removing proportionality as a counter-argument lies in adopting a wholly unconventional approach.
Rather than assuming that the only way of restoring from the tapes is to use the original – or native – environment, eMag Solutions have developed a Non-Native Restoration Engine that removes the need to employ any of the original hardware, software or computer system when restoring legacy data.
This system can access data created by any of the hundreds of different backup systems and works with any tape drive.
Over 20 years development has delivered a solution that can restore directly from tapes with no consideration for the tape type, history or backup systems used. Additionally, this restore engine can selectively restore just files that contain emails or the document types in which you are interested.
Additional features mean that the engine can recognise the dates on which tapes were created which can quickly identify which tapes and can then restore them without needing to know their sequence or any additional system information. Since the data is being restored outside of its original environment, the need to use any set passwords is also removed.
As files are restored from the tapes, the engine incorporates a sophisticated system that recognises if a particular file or email – with identical content- already exists and then removes it, retaining a record of its existence.
Only emails from people in whom the investigation are interested need be retained and these can then quickly be searched for specific words, phrases or combinations of both. This means that you can receive for review just a DVD or disk with a single copy of each email or document which meets your specific search criteria.
The time and cost that this saves can be massive, removing any financial argument that the other-side might use to prevent this superb information source being used.