An archiving service provider, let's call him X, had taken on the task of scanning and archiving all of the invoices and delivery notes of a company, let's call it Y, in an audit-proof manner. He was then supposed to destroy the originals. During the term of the contract, Y was able to access the archive remotely using special software. This allowed for convenient searching of the database. After a few years, X and Y no longer got along and the contract was terminated.
X now provided Y with a WORM. The data was supposed to be on this. Y tried, but couldn't even find an IT service provider who could read this particular WORM. It later turned out that it was a special medium (probably a special MO). At this point, the OLG makes its first mistake. It is blinded by the dazzling term WORM and believes that it is dealing with a specially defined medium. In fact, WORM only stands for Write Once Read Multiple - which a CD-R, DVD-R, etc. also fulfills.
The court-appointed expert therefore also had to travel to location X in order to determine what was actually on the disk. It turned out that there was no file system or file index of any kind. All the data was written to the disk in sequence. With specialized knowledge of the structure of PDF file headers, it was possible to use a hex editor on the medium to find out where a PDF file began and ended. So you had to be a specialist in the PDF format and also have a special drive costing several thousand euros to be able to read anything from this "WORM".
Nevertheless, the OLG Hamm came to the surprising conclusion that X had fulfilled his obligations. X had used general terms and conditions – as is well known, a mere reference to the existence at the conclusion of the contract is usually sufficient – and these had regulated the publication on "WORM" without the delivery of software:
"1. At the end of the contract, X is obliged to immediately hand over to the customer a set of the data stored on the server on data carriers (WORM). In addition, the customer can receive the data in a common format on data carriers (CD-ROM or WORM) for a fee.
2. X is not obliged to provide archiving or other software after the end of the contract."
The Higher Regional Court of Hamm considers these terms and conditions to be effective – although it was hardly possible to deduce from the terms and conditions in advance that one would receive an exotic data carrier without a file system afterwards. In its ruling, the Higher Regional Court of Hamm emphasized that Y could not expect to receive the contractual services free of charge after the end of the contract. It overlooks the fact that the contractual fee is certainly paid primarily for the labor-intensive process of collecting and scanning, but not for keeping the search options available. It is very surprising that Y should not even be entitled to a file system just because data can somehow be read from the storage medium using a HEX editor.
The Higher Regional Court of Hamm draws a parallel here to a property manager who is only obliged to hand over the collected documents. This comparison is not convincing, because it seems questionable whether the property manager can actually fulfill his duty by handing over approximately 200,000 unorganized documents. Furthermore, anyone can search and find something in the paper documents that are handed over. In the case of the "WORM" in question here, several IT service providers were unable to even procure a drive to read the data, and then it also required specialized knowledge. So courts should not always make simplified comparisons to categorize technical facts.
In view of this decision, anyone who uses an outsourcing company to archive paper records can only be advised to determine exactly in which legible form the data will be returned at the end of the contract before signing it. In any case, you cannot rely on the courts for help.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.