Backup your Data - For Disaster Recovery and Litigation


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As the field of Computer Forensics and E-Discovery becomes more mainstream in litigation, companies may now find that they need to take a closer look their disaster recovery plan for both data loss and litigation.

With the new rules in the Federal Rules of Civil Procedure with regards to E-Discovery, back-up tapes are not only important to the IT Department should a server fail, but are now critical when a company finds itself in the midsts of litigation. Some examples of different types of information which could be required through litigation include:

  • NIDA (Non Invasive Data Acquisition)

  • Accounting Information

  • Corporate E-mail

  • Intellectual Property Disputes

  • Insurance Fraud Cases
  • Corporate Investigations

  • Corporate Counsel Support

  • Electronic Records Management
In a recent case, AAB Joint Venture v. United States, 2007 WL 646157 (Fed. Cl. Feb. 28, 2007), the court heard an argument regarding the a period of time (data) for which that data was not available. The defendant claimed that it had provided all e-mails related to the case. However, the court was not persuaded by defendant’s arguments, and agreed that defendant’s overall production of emails had been far from adequate. The court also said that, while cost was an issue for the court to consider in addressing a motion to compel, it was not the only consideration. The court continued with the following statement:

Here, because the Court finds that defendant had a duty to preserve evidence, as set forth below, the Court cannot relieve Defendant of its duty to produce those documents merely because Defendant has chosen a means to preserve the evidence which makes ultimate production of relevant documents expensive. Accordingly, the Court concludes that Defendant has not adequately responded to Plaintiff's requests for production of electronic documents and that supplementation of its response to Plaintiff's requests is necessary.
IT departments should verify backups are able to be restored and the data is intact. Not many IT departments routinely check the back-up server's error logs to discover potential problems. Only when a disaster occurs do they realized that the scheduled backups have not been collecting all of the data.

From an IT point of view, this is one of the worst case scenarios they deal with on a daily basis. From a legal point of view, those backup tapes. . . or lack thereof. . . are just as damaging. Those tapes represent a snapshot in time for that company which can either help or hurt their litigation.

Jason Perry

ADR Data Recovery is available to evaluate the damage and potentially recover your lost data. For more information on ADR Data Recovery's Computer Forensics service, visit


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