It never happens here
You heard the one about the paralegal making copies of a confidential agreement and forgetting the original on the photocopier machine, or the one about the office manager making copies of the department’s staff’s annual performance reviews and then leaving the originals on the photocopier for everyone in the office to peruse. That doesn’t happen in your firm you say. Well, think again.

But it’s only a copier
The feature rich copiers manufactured in the past few years have the same kind of data storage media found in computers. Perhaps that much may have been obvious, but to reproduce documents quickly and efficiently, and use those features, the scanned documents (now a digital image) are also stored. The scanned data – everything you just copied – is retained. Depending on the make and model of the copier and the amount of use it gets, the pleading you just copied, the confidential agreement you spent months negotiating, or perhaps it was your taxes, could be sitting there indefinitely. I’ll save you the trouble of looking for the “delete” button - it doesn’t exist.

Information theft de jour
We are all inundated with stories of information theft resulting from a stolen laptop from a disgruntled employee, a misplaced PDA by a senior executive, a breach of corporate network security by some nerdy 9th grader or e-mail and phishing scams by organized criminals. The digital copiers used in small and large business offices, the local photocopy shops and in public facilities are easy targets for someone with malicious motives. Sensitive information from original documents could just as easily get into the wrong hands.

Implications for eDiscovery
Amend that discovery motion now - this too is discoverable. The amended Federal Rules of Civil Procedures (updated December 2006) now dictate that all electronic files are subject to discovery in a Federal Civil proceeding. Chances are you haven't thought of the copier. More importantly, the copier's hard drive may be the only source of evidence showing the gradual changes, and hand written notations, made to the various versions of a document key to the litigation.

What to do
Many government agencies and defense contractors have strict policies in place to both secure access to certain copiers and to make sure the copier’s data media (hard disk, flash memory, etc) are not passed along when the machine is replaced. Large financial institutions too have begun to take similar measures to avoid a messy and litigious compliance problem resulting from unwittingly disclosing private customer information or breaching regulatory firewalls.

Manufactures are beginning to add security features such as encryption and data overwrite to their copier lines. Some already offer security kits for recently sold models. Encryption means managing yet another set of pins and passwords; overwrite simply relies on the expectation that your data will be written over by that copier’s next victim which is like expecting to win the next Lotto drawing. The odds are about the same.