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: Refreshing involves periodically moving a file from one physical storage medium to another to avoid the physical decay or the obsolescence of that medium. Digital migration entails moving digital files from one hardware or software storage system or technology to another. 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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