eDiscovery and Digital Copiers

As explored on law.com by Rich Melville, the litigation support manager for Maynard, Cooper & Gale, PC, there’s a brand new reason not to give into that “I’m alone here at work” temptation and photocopy a body part of choice: it may end up on the Internet.

Digital Copy MachinesAnd it’s not just regrettable scans that could end up out there. It’s also sensitive corporate documentation, confidential data, and anything else that was clearly never meant for public consumption, and carries a potentially massive set of scary consequences – including legal ones – if it ever does.

So what’s the deal? As Melville writes, it all stems back to a spring 2010 CBS News story that uncovered a gap in many corporate information security systems: digital copiers.

To prove its chilling point, the CBS news team bought four used copiers, and then used forensic software to scrape the hard drives and obtain “tens of thousand of documents” that were, obviously, believed to have been deleted by their former owners.

Now, given the panic the story inspired, Melville makes a valid (though perhaps relatively unheard) point that those “tens of thousands of documents,” weren’t just sitting there on the hard drive, such that any 7-year old could wade through them. They were stored on the hard drives’ unallocated space, and as such it did take special software to get them out.

However, while the point is well taken, the fact that CBS News downloaded the special software freely from the Internet – not CIA-grade stuff that you need a Phd. to figure out – doesn’t really boost the “sleep at night factor” much.

Keeping your Digitial Copiers Clean…REALLY Clean

Melville goes on to discuss how digital copiers are more like printers than PCs when it comes to using available memory. Without jargon, he thoughtfully explains:

“…the majority of copiers use non-volatile memory, such as a hard disk drive, to temporarily store images of documents queued for copying, faxing, printing, or scanning. The images are stored on hard drives as long as necessary to complete the requested work or job, then they are discarded…When a document image is created on the hard drive of a copier or multifunctional printer, space or sectors on the drive are allocated to record the image for printing. When the copier finishes printing the image it purges the file from the drive, but the drive sectors where the image was stored still retain the information to reproduce it. In effect, the purge simply marks the drive sectors where the image was stored as unallocated and available to store another image. As long as the unallocated space on the drive has not been overwritten by another image, it might be possible to restore the purged or deleted image.” (italics added)

So if that’s the problem, then what’s the solution? Melville’s helpfulness goes into higher gear with:

“Most copier manufacturers offer add-on software that will immediately “shred,” or overwrite, the document image so that it is unrecoverable. At this time, only Xerox and Sharp offer immediate image overwriting as a standard feature, at no extra cost, with machines containing hard drives. Canon and Ricoh offer optional shredding software for an additional charge of $500-$750, but many customers choose not to pay the extra money.

eDiscovery Implications

One of the immediate corporate challenges that this all creates is, of course, litigation hold. How can corporations avoid being sanctioned by the courts for failing to preserve this kind of data?

Melville suggest that “[given] the manner in which digital copiers and multifunctional printers use hard disk drives, the ability to retain or recover document images is severely limited, which makes a litigation hold nearly impossible to fashion, let alone enforce.”

That may be true, but there are numerous cases where courts disagree with litigants on what is fashionable and enforceable.

(And courts tend to win those battles. They have the gavels and robes, after all.)

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