The MPAA and RIAA have asked a Virginia federal court for a preservation order to recover and secure stored Megaupload data. Last year, Megaupload's former hosting company Cogent had warned that several drives, which are preserved as evidence, have become unreadable. The rightsholder groups say they want to act swiftly, before it's too late.

Megaupload was shutdown more than five years ago, but data from hundreds of the site’s servers are still in storage.

This is also true for the servers that were placed at the Internet service provider Cogent.

While the original machines are no longer intact, the company has backed up all data which it will keep in storage pending the various lawsuits against Megaupload and its former employees.

However, as time has dragged on, the condition of the hard drives has significantly deteriorated. Last year, Cogent first warned that sixteen of them have actually become unreadable.

This is a serious concern for several of the parties involved, since these drives contain important evidence. The data are vital for Megaupload as well as the MPAA and the RIAA, which filed civil lawsuits against the company.

To move things along the MPAA and RIAA presented a joint preservation plan to the Virginia Federal Court this week. According to two similar motions submitted by the rightsholder groups, they have reached agreement on “nearly all” terms of the data preservation process.

In practical terms, the motions propose to ship the sixteen failing hard drives to the independent forensics company DriveSavers. The company will then try to recover the damaged data in a secure location, without any active connection to the Internet.

When the recovery is complete, the original and copied data will be shipped back to Cogent in separate transports. Cogent will store these two versions in different locations, and DriveSavers will not retain any copies after the process is complete.

In their request to the court, the rightsholders want to act swiftly now, fearing that crucial evidence will otherwise be lost.

“As Plaintiffs have repeatedly maintained, the only pressing issue for the Court now is the recovery and preservation of the evidence on the Cogent drives; questions of who may subsequently access that data, and under what circumstances, remain contested and can be addressed at a later date.

“Otherwise, potentially critical data will remain at risk of disappearance while the parties continue to argue over an issue as to which no negotiated resolution is possible,” MPAA tells the court.

With time running out, the money issue has also been resolved. Previously the parties disagreed about who should pay for the recovery process, but the MPAA and RIAA now state that they will pick up the full tab.

The parties could not reach agreement on a separate issue; whether Megaupload should be able to access the data. According to the MPAA and RIAA, this “collateral” issue could be dealt with at a later stage. In their proposed order they therefore stress that Megaupload, or any other party, shouldn’t have access.

Megaupload counsel Ira Rothken informs TorrentFreak that his client also wants the aging drives to be preserved. However, Megaupload is not happy with the current wording of the proposed preservation order as it specifically prevents the company from accessing its own data.

This language goes against the Stored Communications Act (SCA), he argues, noting that the whole issue would have been moot if Megaupload was allowed to take proper care of its data years ago.

“The proposal by the studios, under the guise of preservation, attempts to enjoin Megaupload from accessing its own ISP data. Megaupload believes that the Stored Communications Act mandates that Megaupload is the only entity that can access such ISP data,” Rothken tells TF.

“If the DOJ and studios wouldn’t have objected to Megaupload accessing its own data years ago then Megaupload’s legal team would have preserved the data in a forensically sound manner and there would be no need for the current motion to restore corrupted hard drives,” he adds.

Megaupload plans to respond to the MPAA and RIAA with their own proposal, which doesn’t limit the file-hosting company’s rights.

Then, it will be up to the court to decide if and how the deteriorating data should be preserved. Whether it is still in time to recover all data is uncertain at this point, but the condition of the evidence certainly isn’t improving.