In today's corporate world, businesses are generating enormous amounts of electronic information. Most of this information becomes obsolete before hardware and software configurations can no longer handle it. At a minimum, it becomes legacy data and remains out the litigation process. Governmental entities and health care providers face different challenges. The Health Information Technology for Economic and Clinical Health ("HITECH") Act as part of the American Recovery and Reinvestment Act of 2009 and other developing legislation is creating this new atmosphere. Governmental entities and health care providers may be required to maintain electronic information for long periods of time if not forever. For those records, a preservation plan must take into account not only hardware and software advancements, but limitations of storage media, and the information use reliability. This article will address handling those obstacles.
Developing Requirements for Health Care Providers and Governmental Entities
E-mail, as the new primary means of business communication, became the focus of decision after decision in the ever entertaining discovery dispute arena. The mere size and amount of e-mail generated coupled with its own inherent preservation and production problems contributed to this attention. When Congress passed HITECH as part of the American Recovery and Reinvestment Act of 2009, heath care providers were guaranteed similar retention and production issues. Earlier this year, the Centers for Medicare and Medicaid Services ("CMS") clarified qualifications for health care facilities wanting large payments in 2011 and 2012. These qualifying health care facilities are required to maintain 80% of patient records and 40% of prescription records in digital form. The very nature of this information mandates an extended life span with corresponding preservation concerns.
Government records face the same exponential growth likelihood. The Federal Records Act of 1950 (44 U.S.C. § 3101) requires agency heads to "make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and is designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's activities." As electronic information became more prevalent further legislation developed. The Paperwork Reduction Act of 1980 (44 U.S.C. § 3501) calls for the coordination of three electronic record keeping elements: the integration of automatic data processing; telecommunications; and records management policies and procedures. Further, the Office of Management and the Budget ("OMB") Circular No. A-130 specifically includes information in any form in meeting the creation, maintenance, and disposal requirements of the Federal Records Act of 1950.
Supplementary nourishment of this growth is the plethora of state laws implementing similar necessities. As an example, for purposes of effectively reducing the significant paperwork and associated costs in the daily operations of state government, Hawaii enacted Act 177, Session Laws of Hawaii, Regular Session of 2005 (HB 515), allowing state and county agencies to create and maintain their records in electronic format. This act calls for storage of government records in electronic format, as well as the conversion of existing paper and microfilm documents to electronic documents. The Illinois Local Records Act (50 ILCS 205) also allows local government agencies to reproduce existing public records in digitized electronic format. However, the Act only allows this process if electronic records are reproduced on a "durable medium that accurately and legibly reproduces the original record in all details," and "that does not permit additions, deletions, or changes to the original document images."
While business entities rapidly continue to produce records in electronic form, most if not all of this information will be subject to destruction within industry standard timelines that accommodate current technological limitations. However, as governmental entities and health care providers generate electronic information, which, by its nature is designed to have a lengthy if not infinite life span, two issues will develop: (1) Can electronic information be retained for long periods in compliance with applicable law and, (2) since this information remains available, can it be maintained in a form suitable for use in the defense of a governmental or health care client?
Software and Hardware Restraints
A fundamental issue involving preservation of electronic information with a long life span develops from the nature of the information itself. Anyone that has dealt with the most basic e-discovery issue will attest that it is inherently more fragile than traditional technologies as it is more easily subject to corruption and alteration. As time progresses, the briskly increasing number of formats and the increasing complexity of each unit of information (many times combining these various formats) exacerbates this issue and increases software dependency. Copyright/intellectual property rights associated with much of the software in use and the absence accepted industry standards for long term access makes software dependency a negative factor.
Each type of storage media available for storage of electronic information with a long life span has its own shortcomings. The media's negative attributes are typically emphasized when considered for long term storage. Hard disk drives are routinely used in forms ranging from corporate servers to hand held devices. Information is accessed quickly, efficiently, and in its intended format. However, 10 years would be an extreme life expectancy of a hard drive. Close spacing between the heads and the disk surface make hard disk drives vulnerable to head crash damage. Physical shock, contamination, and corrosion are the typical culprits. Tape drives are the preferred archiving technology despite significantly slow accessibility rates. The two key components that make tape drives favorable for back up purposes make it the less than perfect media for long life span information. Tape is rewritable and not designed to read or write individual files. Moreover, software for tape drive use tends to be highly proprietary. Optical discs offer 100% WORM media. Unfortunately, limited rpm rates from a non-fixed drive and optical head weight produce slow data access rates.
Preservation Techniques Including Metadata Maintenance
Long life span electronic information retention plans must include an assumption that the
periodic transfer of electronic information from one configuration to another, or from one technology to another is inevitable. Those of us that have read case after case where discovery sanctions are imposed based on the destruction or alteration of metadata from this type of activity cringe at the thought. Given this inevitable migration of information, a method must be selected to ensure such information is appropriately maintained to conform to applicable standards. Additionally, certain levels of metadata must be maintained to elicit any hope of using such information in support of a defense.
The "computer museum" is always presented as an alternative. Saving all hardware, software, and documentation needed to support stored electronic information however, is unrealistic. Costs associated with equipment storage will be overwhelming. Furthermore, the likelihood of hardware failure without available replacement materials is enormous. Just envision the scenario with a separate system for every 5 years of information. The next alternative is usually emulation. By creating programs and/or hardware to simulate previous versions while preserving the functionality of the information, this approach removes the need to maintain the original hardware and software. However, creation can be time-consuming and difficult to achieve. Despite the original cost of developing an emulator, arguments remain that creating an emulator may prove to be the more cost efficient solution. An additional approach of packaging the electronic information with all information on how to interpret it may also be used. This is typically referred to as Encapsulation. These packages are usually very large in size. Migration of the encapsulation packages and creation of encapsulated packages is the largest drawback. Probably the most common approach of preserving long life electronic information includes a combination of refreshing and conversion. Refreshing involves the transfer of information to a new media. The conversion process then changes the information from one format to another. Many times information can be moved out of a proprietary format. Tests to determine what information, including metadata, will be lost are an absolute necessity, sometimes proving the process to be less attractive.
Whether the intent is to present electronic information as evidence or simply have it available for public access, information, in any form, is only valuable if it can be easily used. Metadata is essential to this purpose. Metadata must contain standardized elements and fields ("structured format") as well and consistent recognizable content (e.g., "03/17/11" as the standard expression of a date) commonly referred to as controlled vocabularies. Metadata standards are typically based on The Dublin Core elements. These elements, intended for cross-domain information, provide fundamental components to describe and catalogue most information. The Dublin Core Metadata Initiative http://dublincore.org/ provides an open forum for the development of interoperable online metadata standards. Regardless of the migration process, adoption of appropriate metadata elements will increase the successful use of such information.
Addressing the Two Developing Issues
Preservation of long life span electronic information will place an ever increasing burden on multiple levels of health care providers and governmental entities. Both will need to address the assessment demand of time and money, whether it includes hired expertise, increased staffing or system hard costs. Many decisions will be made with anticipated miscalculations. The ongoing process of analyzing and implementation should be well documented.
In development of the plan to preserve electronic information with a long life span, the following topics should be considered.
- The frequency at which the information will be accessed,
- The amount of time required to maintain the information (its lifespan), and
- Potential cost savings by mass storage with anticipation of sharing within the organization.
Once these issues are addressed the plan with the following considerations can be put into place:
- What media source will be selected?
- What software is efficient and appropriate and will the proprietary nature impact other decisions?
- What hardware is necessary to process and store the information?
- What process will be used to assure that the information remains accessible and reliable, while addressing applicable security requirements?
- What level of metadata will remain intact during anticipated migrations?
Consideration of these factors will help ensure that electronic information is retained for long periods in compliance with applicable law and can be maintained in a form suitable for use in the defense of a governmental or health care client.
Thomas D. Esordi is a Principal with Kitch Drutchas Wagner Valitutti & Sherbrook, representing businesses and governmental entities in complex and high profile litigation. Mr. Esordi regularly advises his clients on electronic information preservation and production issues.