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

    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

    » 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 or email

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