My first computer came with a built-in 5 ¼ inch floppy drive and the new 3 ½ inch disk drive that was just out. Suffice it to say I was more than a little excited! This was a DOS based system and I thought it rocked. Of course I did what we all did with our computers back then. I backed up personal files to floppies and purchased several great educational programs to enjoy with our young toddler.
Given the pace of change over the years, I went through several computer upgrades as my family and our perceived technological needs grew. Eventually after the birth of our last child, I decided to dig out some of those old educational programs only to realize that I no longer had a 5 ¼ inch floppy drive with which to access them. It took a little time but I did manage to locate one and successfully copied the program files onto more current media. It was then I discovered that these programs, not to mention a few personal files still formatted in an old DOS-based version of Word, were not compatible with the operating system of my current computer. I was dead in the water. This was my introduction to the legacy system problem because truthfully, the problem never occurred to me.
Of course this wasn’t a true crisis. I could live without the educational programs or those old backup files. That said, this situation would play out quite differently if the old files and programs needed were business related or access to the data stored there was necessary in order to defend against an allegation of malpractice.
Think about it. We all are creating more and more digital files each and every day. It may be five years, ten years, or even longer but at some point you may have a pressing need to access a digital file you’re creating today. The question is will you still be able to access it if and when that day arrives? Will the storage media you are using today still be in wide use? What about the necessary software programs, will they still be available? Will those programs even run in the virtual environment of that time? I can share that I was one who thought that 8-Tracks, VHS Tapes, and even LP vinyl records would always be around and look how that turned out.
I suspect some may respond to this tale with a yawn, arguing this is much ado about nothing, so here’s a more relevant story. In 2005 a lawyer agreed to defend a sexual harassment claim late in the case due to the original lawyer’s disqualification. This client happened to be a business located next door to the law firm. The business owner, a loud and brash man, was the target of the suit. One twist of many was that this client informed the new lawyer that he would not read anything sent by the lawyer. Instead, the lawyer was to walk over and report to the client in person. Given this circumstance, the lawyer kept meticulous notes in the firm’s practice management software which happened to be Amicus Attorney. The original suit proceeded to trial where the client lost, but the suit was reversed on appeal and ultimately the case settled for less than the original judgment and well within the client’s insurance limits. Seems like a good outcome to me.
Unfortunately over the years the firm had failed to upgrade their version of Amicus Attorney, in part due to the costs involved. Upon learning in 2007 that their version was no longer going to be supported, the firm made a decision to switch to Practice Master. The old Amicus Attorney database was placed on a separate drive which went into storage. Then in 2009 the client sued this lawyer claiming he had failed to try to settle the claim prior to trial. The client apparently felt that if the settlement had occurred at that time, it would have prevented the adverse media reports that eventually led to his losing his business. The lawyer knew that he could successfully defend against this accusation because of the detailed notes that were on the drive in storage. The drive was pulled and then the lawyer learned two things. First, the software necessary to read the database was no longer available; and second, the drive was corrupt.
In order to ensure that you don’t ever find yourself in a similar situation, let me offer a few suggestions. Regardless of the decisions you have made with your digital storage solutions, discuss any long term access concerns with your IT staff or consultant to include whether it might be advisable to maintain a legacy system. For example, as you upgrade and/or replace computers and programs, you might consider maintaining a standalone legacy PC configured with the hardware and software in use today and keep that in a safe place, perhaps in a file storage location. In addition, original software programs including the original recovery and restore disks should also be kept in a safe place. The goal here is to ensure that years from now if any digital file being created today is no longer accessible on the then current system, you will still have a legacy system with which to access that old file.
In the alternative, you might consider storing all digital files in widely used formats such as TIFF or PDF because they will likely have a longer life span and the printer drivers necessary to do so are widely available and inexpensive. As part of this process, and given the low cost of digital storage these days, I would also recommend having at least one backup copy of all digital files in storage because sometimes drives do fail. Finally, if and when storage media changes yet again, move your digital files to the new media while you still have the ability to easily do so. I know this can be a pain, but failing to take that kind of step is the equivalent of pinning your hopes on some guy on eBay being willing to part with that rare 5 ¼ inch floppy drive. Personally, I don’t see that as the best of plans.
As a Risk Manager for ALPS, Mark Bassingthwaighte. Esq. is responsible for developing and delivering new risk management and CLE products and services, risk management consulting, law firm risk evaluations, and writing content for the ALPS 411 blog at www.alps411.com. In his tenure with the company, Mark has conducted over 1,000 law firm risk management assessment visits, presented numerous continuing legal education seminars throughout the United States and written extensively on risk management and technology. Mark received his J.D. from Drake Law School. He can be contacted at: firstname.lastname@example.org