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 retention of legal documents differ depending on the type of document and the jurisdiction. But, 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

Today’s attorneys need to be able to get to relevant documents in any form from any location.

This problem snuck up on even the most prominent technologists and institutions. In fact, Vint Cerf, the so-called “father of the Internet” and now chief evangelist at Google, is warning about a “digital dark age.” James Billington, the 13th librarian of Congress, disclosed to me that the library of commerce has realized the extent of the problem. He said the library already has some digital media that can no longer be read on available hardware.

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

In a recent IDC survey commissioned by Ricoh, nearly half of the respondents said they spent 50 percent or more of their time working from non-traditional locations. Yet only 17 percent of companies were adequately equipped to support them. The survey also found that half of employees needed access to more than six different information repositories to do their jobs, yet only 18 percent can search across them.

In my experience, I’ve uncovered steps that 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. Even a tech luminary like Apple founder Steve Jobs could not retrieve emails from the 1990s to help his biographer, Walter Isaacson. “When I asked a university librarian recently the best way to preserve some interesting e-mails I had, she said I should print them out on paper and put them in a box,” Isaacson said..

The Library of Congress is studying the issue and has produced a useful set of resources both here and here.

If you’re due for a document retention policy update, a technology consultant can help you sort through your options.