As the emphasis on electronic discovery
continues to grow in the legal community, there remains one issue that, for the
most part, continues to elude mainstream awareness, and that is the problem of
ensuring the long-term preservation of digital evidence. Digital longevity problems
stem from the short life of digital information caused by storage media
deterioration, rapidly changing storage devices and shifting file formats.


The majority of users are under the impression that because of its easy
reproducibility, digital information, unlike analog information, has an
unlimited lifetime — and theoretically it does, given the right attention and
proper archival diligence. Unfortunately, this defining property of digital
documents tends to blind users to their real-world transience and
vulnerability. Because rapid technological change and continuously evolving
standards require an unrelenting and substantial input of time, labor and funds
to safeguard digital data, their preservation tends to require more attention
than conservation of other media. Indeed, it does not take much effort to name
forms of digital storage that have become virtually obsolete since IBM
introduced the PC to the world in 1981. Tape backup systems, 5 ½ inch and 3 ½
floppy disks, immediately come to mind. Indeed, there is a lot of truth to the
observation by Jeff Rothenberg that digital information lasts forever - or five
years, whichever comes first.


From a legal perspective, the digital longevity problem has particular
relevance, since not all litigation involves documentary evidence that is
recent. So-called "cold cases" have been solved based upon DNA evidence that
was over 20 years old but well preserved in an unbroken chain of custody. If
these cases had instead depended on preserving digital evidence, the odds on
solving them would have severely diminished.


Records as digital evidence

The ISO 15489-1:2001 defines records as "information created, received and
maintained as evidence and information by an organization or person, in pursuance of legal
obligations or in the transaction of business." The key word here is
"evidence." Clearly, by definition all records are evidence, but the term
"evidence" covers an array of legal objects that is far more wide-ranging than the
term "records." At first, judges allowed only digital documents, such as digital photos, spreadsheets and word processing pages, which were governed by the best evidence
rule. But over the past two decades, especially since the publication of the
Sedona Principles of electronic discovery in 2006, the use of digital evidence has broadened
to the point where judges have allowed into court the use of digital photographs, digital video or audio files, emails, ATM transaction logs, instant
message histories, files saved from accounting programs, metadata, Internet browser histories, databases, the contents of computer
memory, computer backups, computer printouts, "black box" data
from airplanes and automobiles, GPS tracks and logs from a
hotel's electronic door locks.


All of these data types can be stored on
various digital media and electronically retrieved later during legal
discovery, a process known as electronic discovery or eDiscovery. Electronic discovery specifically
refers to discovery of the electronically stored information (ESI) listed previously. In fact, ESI is a term that encompasses virtually anything found stored
on any possible computing device — including but not limited to servers,
desktops, laptops, cell phones, hard drives, flash drives, PDAs and MP3
players. Technically, information is "electronic" if it exists in a medium that
can only be read through the use of computers. Such media include cache memory,
magnetic disks (such as computer hard drives or floppy disks), optical disks
(such as DVDs or CDs) and magnetic tapes. Electronic discovery is
differentiated from "conventional" discovery in that eDiscovery involves
computer-usable data while conventional legal discovery refers to uncovering
information recorded on paper, film or other media that can be read without
using a computer.


The law requires the sponsor of digital
evidence to lay the proper foundation. The American Law Reports lists a number of ways to establish such a comprehensive
foundation. It advises that the advocate demonstrate "the reliability of
the computer equipment," "the manner in which the basic data was
initially entered," "the measures taken to insure the accuracy of the
data as entered," "the method of storing the data and the precautions
taken to prevent its loss," "the reliability of the computer programs
used to process the data" and "the measures taken to verify the
accuracy of the program." These requirements make the problems associated
with digital evidence more stringent than those associated with digital
longevity.


Three
ways to preserve digital evidence


Accurately and legally preserving digital
evidence for a statutory retention period is a task more difficult than simply ensuring
the longevity and integrity of digital documents. The definitive exposition on
the problem of digital longevity was published in the January 1995
edition of Scientific American in an article entitled, "Ensuring
the Longevity of Digital Information" by Jeff Rothenberg. In that
article, Rothenberg declared the problem not yet solved, but did suggest some
procedures which, if rigorously followed, can preserve digital documents
indefinitely. Here is a brief rundown of the major procedures he discussed:




  1. Refreshing
    involves periodically moving a file from one physical storage medium
    to another to avoid the physical decay or the obsolescence of that medium.


  2. Digital migration entails
    moving digital files from one hardware or software storage system or
    technology to another.


  3. Digital emulation concentrates
    on applications rather than files and allows a user to access original
    data by running the native software on a contemporary platform that electronically
    mimics the original one.



Each of these approaches, if properly carried out, can
ensure digital longevity; however, each of them has shortcomings. Refreshing, for example, necessitates
that its proponent guarantee commitment to a seamless series of revitalization
tasks with a life cycle brief enough to keep physical media from becoming
inaccessible or obsolete before they are duplicated. Migration circumvents the requirement for standards, but it
increases the risk of losing information due to translation errors. Emulation poses significant development
challenges and carries with it greater risk since even a slight software error
can make it impossible to run the old applications in the new computing
environment.


» Note: Look for the conclusion of Mr. Gingrande's article on November 22, 2011.









ARTHUR GINGRANDE is a partner of IMERGE Consulting in Lexington, MA and nationally
recognized expert in ICR, forms processing and document automation. He is also
a practicing attorney who specializes in electronic discovery, regulatory
compliance and intellectual property law. For more information, visit www.imergeconsult.com or email gingrande@gmail.com.
 

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