Technological Obsolescence and Electronic Discovery

The Federal Rules of Civil Procedure were amended last year to reflect the growth of electronically stored information. This, of course, means that whenever legal discovery comes into play, companies and individuals will need to find and turn over such electronic information.

The rules now cover all sorts of electronic files (see the list below) that are created or received in the normal course of business.

The rules also state that:

1. information that is deemed "inaccessible" may not need to be produced and
2. parties may be given "safe harbor" (i.e. you are off the hook) if information is inadvertently lost provided that it happens during routine operations

So what exactly is the impact of these rules on a business and especially on the effects of software and hardware obsolescence?

First, let's assume that these new rules are sufficiently vague to require interpretation in a court of law. However, this does not mean that you could or should not apply common sense.

Second, and as you hopefully already know, ignorance is not bliss when it comes to court proceedings. In other words, you can't plead that you were not aware of the law now that we are in 2007. For example, if you fail to apply the "minimum alternative tax" rules when doing your tax return, the IRS will still come back and collect it from you and possibly give you a fine too.

• Using a "real world" IT example, if you fail to recognize that a specific type of storage medium (e.g. WORM optical disks) will not be able to be read five years from now because the optical drive dies a year from now and the OS has changed, you won't be able to plead that the information is "inaccessible." Why? Because you should have been aware of the new rules and taken steps to assure that any information on the obsolete medium was migrated to the current technology platform and medium. If you simply store the original media off site and your retention schedule has not called for their destruction, you can expect that the court will make you do whatever is necessary to get to that information.

Third, you should be able to claim that information on older media or requiring obsolete hardware or software is "inaccessible" using the grandfather clause argument. What I mean by this is that any information that existed prior to the new discovery rules AND existing on already obsolete hardware, requiring obsolete software or in a format no longer supported may not require discovery.

• Using another IT example, if certain information related to the marketing of a drug product was created by a brand manager using Wordstar running on DOS 2.0 and is only available on a 5.25 inch diskette, you may be able to argue that it should not be discoverable under the "inaccessible" rule.

Fourth, your standard records management practices may save the day. Referring to the WORM example above, if your corporate retention schedule says that you only need to keep the information on that disk for two years and the two years have expired, then you should not migrate that information to current technology. Just destroy it using your normal retention policies. Make sure that your existing records management policies and procedures are being followed and take the time to update them to reflect the new electronic discovery rules.

Fifth, while common sense should be used, don't forget to involve both your records manager and legal counsel when deciding how electronic information should be managed given the continuing reality of technological obsolescence. In other words, don't just take what I have said here as gospel. Every organization is different and differences of opinion will certainly exist.

Last, but not least, try to avoid sticking your head in the sand.

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Types of electronic information included in the new rules:

• word processing documents
• spreadsheets
• digital photos/images
• electronic faxes
• e-mail messages
• e-mail attachments
• instant messages
• blog text
• video and audio files
• presentations

In other words, anything that is an electronic file. Oh, don't forget structured data too such as database records.