E-Discovery Update - by Fios Inc. - Working With Obsolete Data

Understanding older and discarded computer technology is an increasingly important part of the litigation discovery process. Such knowledge rarely concerns the underlying legal dispute. Rather, this expertise must be applied when collecting and exploring electronic files and business records that might contain relevant discoverable information. Equally important, a responding party must be able to cogently describe to opposing counsel or a court the burden involved in accessing older data that can no longer be read with common tools and technology within the company. A bare statement that "We can't do this," carries little persuasive weight. On the other hand, explaining the precise costs and time requirements to make specific old data available for review and possible production demonstrates that counsel has done the proper homework before seeking relief.

Vintage computer data involves two separate avenues of analysis: software and hardware. Though it seems quaint today, the world of personal computer word processing, spreadsheet, and database software was quite fragmented prior to the widespread adoption of Microsoft® Office 97. WordPerfect, Quattro Pro, Lotus 1-2-3, FoxPro, and other applications were widely used by many businesses, and many of these files remain, in their original formats, on corporate data servers, having been migrated in bulk as server hardware was upgraded and replaced over the years. Similarly, many companies used (and may still use) traditional mainframe computer systems for databases and business functions like payroll. Data from these sources is not only saved in proprietary formats, but is also stored on storage media that cannot ordinarily be read by personal computer workstations. Finally, software used to compress data and write it to backup tape has significantly evolved over the years. Even companies and individuals that have consistently used the same software may find that their current installed version cannot read tapes created by older versions of the software.

Similarly, advancements in computer hardware, especially the way that files are stored, means that today's equipment is often unable to access data on older media. No computer made today reads 5.25-inch floppy disks, which were widely used even through the late 1990s. Early hard drives used different interfaces and sometimes required specialized controller boards that are not compatible with modern computer architecture. Backup tape technology changed significantly over time, too, leaving a huge universe of older tapes that may have perfectly intact data, but which cannot be read by today's tape drives.

Legal teams that find themselves working with vintage media should approach these materials with caution-but not with fear. Several basic strategies can help teams manage the issues that arise when potentially relevant data is not readily accessible.

1. Identify Whether Vintage Data Is Relevant

It may seem self-evident, but it is important to verify that an information request actually requires analysis of vintage data. Many legal disputes concern actions of specific individuals or groups during specific time periods; it may be possible to segregate materials created before (or after) key events on grounds they are extremely unlikely to contain relevant information. Determining when a specific piece of storage media was last used-without reading the data-may be complicated by the fact that users rarely labeled floppy disks, data tapes, and CDs with the dates that they were used (or last used). However, in some circumstances, the very media itself may help date these materials. For example, 5.25" floppy disks could not have been used at an organization after computers with these disk drives were replaced. Similarly, backup tapes can be dated to when their specific tape drive was in use. Because backup tape technology has evolved so quickly, tape technology may have been upgraded on an annual basis.

2. Leave the Original Media to the Experts

It can be tempting to pop an original floppy disk, CD, or hard drive into the nearest computer for a "quick and dirty" review of files, but even an innocent exploration of older media can render them unreadable due to wear and tear. Analog media, such as floppy disks and older backup tapes, shed small amounts of their magnetic oxide every time they are read. This is in addition to the natural weakening of the magnetic signals that encode data on these media. The layer of plastic used to encode data in non-commercial CD-ROM disks (i.e., those burned by a computer, not in a factory) may become unreadable after as little as two or three years, even under ideal storage conditions. Mistreated or failing hard drives can have head alignment issues that literally shave the data-carrying oxides off their internal platters. Legal teams that access these materials run the risk that some of these media may not be readable at a later point in time-creating potential liability for (inadvertent) destruction of evidence.
Rather than rely on self-help, legal teams should strongly consider outsourcing vintage media restoration to a reputable vendor who is experienced with processing legacy data. Many vendors offer reasonably-priced data conversion services that transfer data from old storage media to modern media that is more reliable and easily accessed by current technology. Moreover, by virtue of their expertise and experience, these vendors are much more credible than in-house I.T. (or lawyers) if it becomes necessary to tell a requesting party or the court that data is no longer accessible.

3. Don't Rely on Vintage Metadata

Today's operating systems and software applications include sophisticated features that rely upon (and create) extensive metadata that is embedded within electronic documents or stored in system logs. Depending on its age, older software may lack some or much of this functionality. As a direct consequence, older electronic documents generally do not have the amount of metadata that is commonly associated with modern data files. Attorneys should carefully research what metadata is available in vintage data before making any representations to opposing counsel or the court.

An additional complication is that data that has migrated from one storage media to another as workstations and servers have been upgraded over time may no longer have accurate metadata. File creation dates, for example, may relate to when these documents were copied over to a new hard drive, rather than the actual time these files were last opened or edited in their native application. Again, the older the data, the more likely this information is suspect.

On the plus side, the smaller storage capacity and simpler file systems of older floppy disks and hard drives may make it easier to conduct forensic analysis of deleted files, file slack space, and unused portions of the storage media. Before turning a forensic examiner loose on these data, however, ask whether these experts have prior experience with your vintage data. Forensic examiners who have only worked with IDE and newer interface hard drives, for example, may have less understanding of obsolete MFM, RLL, or proprietary hard drive interfaces that were still in use a decade ago. A good forensic examiner will readily discuss his or her relevant experience and advise whether they are competent to undertake analysis of particularly archaic storage media.

4. Search in Native Format for Relevance-If Your Search Platform Can Read Vintage Data Formats

A legal team working with older computer data should always confirm that the search technology it uses can properly index and query the data that has been collected. While converting older computer files into modern formats can be problematic, it may well be possible to search older files for possible relevance before attempting any file conversion. Many older software programs stored the core text of their data file contents in ASCII format, adding wrappers of proprietary binary codes to add appropriate formatting instructions. Tools commonly used to search multiple files-even free tools like Google and Yahoo Desktop-can index and search the ASCII portions of these files, even if they cannot display the files correctly. More sophisticated search tools and review tools can provide even greater access to these materials. However, not all data files include clear ASCII text. Spreadsheet and database files often used proprietary algorithms to store data, formulas, and other information that a legal team might want to search. These files may have little or no searchable ASCII text, and will not be properly searched without first converting them to a format that can be indexed.

If it is possible to identify and isolate legacy data that cannot be indexed by search tools because of file or data formatting, that subset of material may be a good candidate for conversion into a format that is understood by present search technology. A number of vendors offer these services and a variety of output formats. However, converting files in this way almost certainly will affect some (or all) of the metadata that is associated with the file. Careful records-and a copy of the original files-should be kept to explain any discrepancies that might occur as the result of mechanical file translation.

5. Get Explicit Agreement with the Requesting Party Regarding the Format of Production

Obsolete computer data is more difficult to access and process than modern files and data. For legal practitioners, the difference between production in "native file" (i.e., original obsolete version) and "reasonably useful" format may be substantial. In preparing to produce any older computer files, make sure that the requesting party makes a clear election as to how they would like to receive these materials. A requesting party is not ordinarily entitled to request a second, duplicate production of the same material it has already received, a point that is emphasized by the proposed amendments to the Federal Rules of Civil Procedure scheduled to take effect in December 2006. Most if not all motion practice on this point can be avoided through prior agreement between the parties.

Conclusion

Vintage computer data, like any other materials collected during discovery, may be vital-or irrelevant-to a legal dispute. Moreover, as technology continues to change, current data may well become increasingly difficult to access by the cutting edge technology of the future. Implementing thoughtful, technology-neutral procedures to process obsolete data will permit legal practitioners to deploy coherent, defensible strategies for working with these materials when they appear relevant in a dispute. Such advance planning will help a legal team avoid any number of discovery pitfalls and will permit them to focus on the merits of a dispute instead of evidentiary distractions.