Continuity of Operations Planning A Necessity of Life

Continuity of Operations Planning A Necessity of Life

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Disastrous events necessitating the activation of a continuity of operations plan (COOP) can happen anywhere, to anyone, at any time. These can be caused by natural disasters, vandalism or—as we now know—terrorism. The court system has had its share of disasters. The Southern District of New York experienced such an event on Christmas Eve 1989. A vandal removed a brass valve from a water main, resulting in a flooded basement. Since, as in most buildings, the court's telephone and electrical equipment are located in the basement, they were totally submerged and therefore out of commission. We were faced with the challenge of physically moving typewriters and paper files from a building with no electricity, heat or water to an alternate work site and to find suitable facilities in which to hold court.

The Western District of Tennessee Bankruptcy Court experienced damage caused by a natural disaster on Sunday, May 4, 2003, when a category IV tornado ripped through the downtown business district in Jackson, Tenn., killing 11 people. According to Clerk of Court Jed Weintraub, "the winds tore the roof off of the courthouse and scored a direct hit on one of the judge's chambers. After the winds abated, the rains came, pouring about three inches of water into the unprotected structure. This water, after having done extreme damage to the judge's furniture and his chambers, eventually settled in the clerk's office space."

The Middle District of Florida was severely affected by the hurricanes that swept through Florida last year. According to Clerk of Court David K. Oliveria, "even before the hurricanes hit, we had to close the courthouse(s) for several days in advance and, of course, during the storms." After the storms, there were several employees who could not travel to work, either because they suffered personal losses or could not navigate through flooded or extremely damaged areas.

We all know that service disruptions occurred everywhere due to the tragedies of Sept. 11, 2001. The bankruptcy court in New York City is located approximately four blocks from the World Trade Center site. We were unable to regain access to the building from Sept. 11-17, 2001, and did not bring staff back until Sept. 18. We insisted on assurances from the engineers that the building was structurally sound, the debris had been cleared and the air quality levels were safe for everyone's return.

The good news is that as tragic as these events were, we all learned a lesson. All three courts had a plan in place to activate in order to continue operations; however, they now have much better plans. These plans are not meant to address the immediate need of an evacuation in case of a fire or other emergency when the physical safety of individuals takes precedence above all else; instead, I'm referring to what happens next. What do you do after you have ensured that the immediate needs are addressed and it becomes evident that employees will not be returning to their place of business for a week, a month or maybe forever? This is when a good COOP document becomes invaluable. It should be in writing and stored everywhere and anywhere employees might be after the initial incident occurs and should be available both electronically and on paper.

A COOP should contain at a minimum:

  • who will be in charge of activating the COOP;
  • the names and contact information for key personnel and their roles;
  • a list of critical duties and responsibilities of the organization;
  • an inventory of essential documents, equipment, etc. needed to conduct business at an alternate site;
  • identity of alternate sites and the names of the persons designated to report there to operate the business; and
  • a process to continuously re-evaluate and monitor the situation in order to make a determination when to return to "normal" activity.

A critical piece of this court's COOP, and essential to many attorneys and law firms, is the accessibility to electronic case filing (ECF). Because all of the Southern District of New York Bankruptcy Court's open case files were available electronically prior to Sept. 11, 2001, the court was back in business on Sept. 13—just one day's interruption in service. As part of the court's COOP, electronic data is maintained on a replication server in an off-site location. Unfortunately, on Sept. 11 the court's replication server was housed at the Administrative Office of the U.S. Courts in Washington, D.C., and thus was not available for immediate access. The server has since been moved to a more remote, less prominent location.

Once the clerk's office redirected its web address from New York to the replication server at the administrative office, attorneys could file and access documents on the ECF system. No data was lost, since we had been replicating data simultaneously and continuously. An added advantage to having almost immediate access to the court's data was that we were able to assist law firms that lost all of their files on Sept. 11 to recreate their records. Luckily, the firms, whose offices were destroyed that day, lost only records and not lives in the events. There were also firms whose records were not destroyed but whose offices were inaccessible due to their close proximity to "ground zero." We were able to assist them also by giving them access to court calendars and records.

The court in Jackson, Tenn., in May 2003 was not fully operational on ECF but was far enough into the implementation process to be able to process electronic documents at its divisional office in Memphis. According to Jed Weintraub, who supports the importance of having a COOP, states: "With a COOP in place, in the event of another disaster, and no paper to protect, move and store, the court could conceivably be operational in another location in a matter of moments."

The clerk in the Middle District of Florida, David Oliveria, stated: "We clearly would have had an administrative mess to clean up after the hurricanes had we not had ECF." He admits he was not a big fan of ECF at first, but its utility during the hurricanes certainly made him a believer. ECF is now a critical element in his court's COOP.

Although experiencing a disaster is traumatic, once the immediate crisis has passed, the life and safety issues have been addressed and the physical and emotional needs have been met, it's time to face the reality of having to regroup and open for business in another location. A comprehensive, well-planned and practiced COOP will make this transition easier. The courts have learned this lesson, and one of the major factors driving the need for immediate access to the court, whether or not we are physically in the courthouse, is to ensure that the court's disaster will not affect an attorney's ability to practice law before the court and to meet necessary deadlines.

The court's ECF system can be a contributing factor to attorneys and law firms in formulating a viable COOP in that once connectivity to the Internet has been reestablished, attorneys can file documents, retrieve court records and generate reports, 24 hours a day, seven days a week. Most of the 94 bankruptcy courts have fully implemented ECF, so this is true nationwide. The district courts are quickly catching up, and just behind them will be the circuit courts of appeals.

It is important for everyone on the COOP team to know his or her role in the event of a catastrophic event. Timely activation and proper execution of the COOP will minimize damage to the integrity of the organization. Mobilization and activation of the COOP should be automatic. When and if disaster strikes, you will be glad you invested the time, money and energy into developing and planning a viable COOP. Having a COOP in place for your practice, regardless of its size, will assure continued operation.

Journal Date: 
Friday, July 1, 2005