Most law firms are careful to retain documents as long as legally required. But their document retention policy may overlook the possibility that documents stored years ago could have used technology that may no longer be accessible. If they can't produce a copy of a will that was originally stored 50 years ago, for example, they could be in violation of regulations. Rules governing the retention of legal documents differ depending on the type of document and the jurisdiction. However, generally the rules require retention of documents ranging from 20 years (such as unemployment claims) to 100 years (such as wills) to indefinitely (such as termination of parental rights). Depending on how long ago a document was stored, it may be on 5.25-inch floppy disks, 3.5-inch floppy disks, optical drives, CD ROMs, hard disk drives, CDs, DVDs, thumb drives or solid-state disk drives.
If it was stored on 5.25- or even 3.5-inch floppies, do you have a machine that can read it?
The problem isn't limited to hardware. You may have 15-year-old documents stored using a previous version of word processing software that relied on a long-discontinued operating system. Not all vendors maintain perfect backward-compatibility with previous versions. For that matter, some vendors of word-processing software may no longer be in business.
Digital dark age
If some of your information is on media that can no longer be read, it's neither mobile nor searchable. The days of sending a request to the research department to comb through old files are almost gone. Today's attorneys need to be able to get to relevant documents in any form from any location. If documents are hidden away in inaccessible formats, your attorneys may not even be aware of them.
Overcoming information gridlock
The following steps are useful to incorporate in your document retention policy to avoid losing access to documents through technological obsolescence:
Scan all paper documents and store them electronically in several different formats, both in media designed for long-term archival electronic storage and in media that is remotely accessible and searchable.
Make sure your document retention policy requires an annual review to determine not only whether documents need no longer be retained, but also to evaluate whether the media on which the information is stored should be updated.
During your annual review, consider whether old documents should be printed, stored and archived in paper form as well as electronically. Companies typically destroy emails after a certain time period, which deletes important historical information.