In conventional, paper-based discovery, if a document exists in a file, it usually can be read without any difficulty. On occasion, paper may deteriorate or ink may fade, but seldom are the documents written in a dead language. The electronic discovery literature, on the other hand, often focuses on the problem of discovering unreadable data.

Computer-based information systems change every few years. Unless careful attention is paid to converting old data into current formats as part of the system upgrade, vast amounts of "legacy" information will exist in electronic form but be costly or impossible to retrieve.⁵⁴ The information may be stored on media that can no longer be accepted or organised in a format that can no longer be read using current software. Computer museums must be consulted to locate the appropriate hardware to accept the outmoded media, and special programs must be written to convert the data into useable form before any determination can be made that the information is relevant to the pending action. The computer forensic experts who specialise in data recovery report in the electronic discovery literature how costly and time-consuming this process can be.

2. The Policy Implications of Legacy Data

The discovery of legacy data is analogous to the discovery of deleted files. A proponent should be willing to provide convincing evidence that the restoration of legacy data will result in the discovery of substantive, material evidence not otherwise available. The holder of legacy data also may have an interest in restoration and review for defence purposes, opening up the possibility for a compromise in the way of cost-sharing or co-operation in locating the most relevant tapes or disks and performing "test drills."

But as with voluminous active data discussed above, the holder of legacy data should not be allowed to avoid the duties of discovery by having a poorly planned or poorly maintained information system. If the failure of the party to routinely update legacy data is unreasonable, viewed in the light of business or regulatory needs without reference to the pending litigation, the party should be expected to pay the costs of that failure.

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