Reprinted with Permission from the March 7, 2005 issue of
New Jersey Lawyer, the Newspaper ____________________________________ Managing electronic documents and files
By Carol L. Schlein
A client recently asked my advice on handling multiple versions and permutations of the firm’s documents. He explained that in the past few years, the firm increasingly has been sending drafts of documents to clients and adversaries. It uses Corel WordPerfect to draft its own documents and Microsoft Word when receiving a document from an adversary or client and has to maintain the formatting. Most often, outgoing drafts are converted with Adobe Acrobat so the recipient can view the documents in the firm’s formatting but cannot make changes. My client asked what other firms do when saving the different versions. He wanted to know how they keep track of the different versions and which ones they keep when the transaction is completed. He was focused more on how to save only those versions worth keeping. Generally, what lawyers do on behalf of clients is considered privileged as attorney work product; however, in light of recent legislation and depending on practice areas, there may be some documents firms are required to keep. Another aspect of these issues is the requirements — or sometimes lack of — concerning how long law firms must preserve paper documents. While laws govern the length of time for saving tax-related documents, there rarely are rules covering client correspondence and more general documents prepared on clients’ behalf — and even more rarely have they been applied to such electronic documents as e-mail. Recent federal legislation, specifically the Sarbanes-Oxley Act of 2002, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and even the Patriot Act contain provisions that impact electronic and physical document retention policies. We need only think back to the demise of the Arthur Anderson accounting firm, which even though it had a document retention policy, rarely used it and when it did, it raised eyebrows because of the timing of the destruction of documents concerning Enron. We could reach even further back and recall that Oliver North got caught because he wrongly thought that e-mail he had deleted was in fact gone when it actually was on backup tapes. It’s no small coincidence that the two newest and most prevalent vendors at the recent Legaltech conference in New York were either document management companies or those that specialize in electronic data discovery. You almost think of these as opposite sides of the same issue — one helps manage your documents and the other helps locate your opponent’s. Both types of companies, while targeting large law firms and corporate legal departments, are attempting to address the internal guidelines for firms or assist them in uncovering smoking guns in their adversary’s document records. First, a policy So, with all these issues, what’s a small firm to do? First, establish a document retention policy. Decide what paper and electronic records to keep. The nature of the documents created (and this includes e-mail records as well as memos, letters, contracts and wills) will help
determine what to keep and what to toss when a case concludes. Doing a web search for “document retention policy” will lead to some codifications of policy that are good starting places for most smaller firms. This is the first step to determine what should be kept at all and what should be deleted or destroyed at established intervals. It’s important to include electronic versions of documents in your policy. Additionally, getting to the heart of my client’s question, you must decide whether, in addition to keeping a PDF version of the final document, you also want, or need, a word processing version of the same document for future use as the basis for a similar transaction. The answer depends in large part on the nature of your practice and the types of documents created. For example, if you prepare a large number of wills and living trusts, and most of them are created from a master document containing the same basic provisions, you may decide to keep only a final version in PDF format. These documents have the benefits of looking exactly like the actual printed version and are more difficult to change than word processing documents. Many firms now delete the drafts when a final document is executed and then convert it into a PDF to memorialize it. The disadvantage of not keeping that last word-processed version is it makes it impossible to copy paragraphs into a new document.
Storage
In the early years of personal computers, hard drive space was at a premium. It was expensive to purchase a 10-megabyte drive, and with the limitations of short file names, law firms had to be creative about naming and storing documents. Then came floppy diskettes for archiving files. Today, some firms still maintain a similar system by copying a case’s entire electronic files onto a CD to store along with the paper file. As the cost of hard drives has dropped, so has the necessity of copying files from a firm’s server. At the same time, however, you often can end up with many versions of a single document. The same way you developed procedures to remove redundant or unneeded papers from a physical file before sending it offsite to an archive facility, you should develop similar procedures for computer documents and e-mail. Document management software sits between you and your word processor and more applications these days including Outlook for e-mail records. By completing a form that usually includes the author, typist, document description, type of document and client-matter information, the software automatically handles naming and determining where to store the file. Most document management programs also can handle archiving or deleting files based on the type of file, when it was last opened or how long ago it was created. For example, these programs can be configured to delete fax cover sheets older than six months while archiving memos after one year.
Document search
The fields you choose for your profile screen can be used to search for documents. Most document management systems periodically index documents’ words so you can quickly find them based on text. Many small firms use home-grown naming and storage systems, and locate documents by storing them in client/matter folders with an agreed upon set of naming conventions. In smaller firms, Worldox is the dominant document management system. In larger firms, Imanage, Hummingbird Docs Open, and other products tend to compete. There are search programs like Isys also used by a variety of firms to quickly search documents. There’s a search tool through the Google website that essentially lets you do a Google search on your own documents. While the price is right, I found Google’s search tool took a lot of processor power from my system in exchange for having quick and easy access to my documents. As more practice management programs incorporate many of the features of the document management programs, more smaller firms are able to have better document access. Programs like Time Matters now include extensive document management features. While the practice management solutions don’t offer all the tools for archiving or deleting older documents, they
include the ability to incorporate information from their case, contact and other record types, and name and store the document with a link to those records. When coupled with e-mail, phone messages, case notes, events and to-do’s, the case management model allows for a more paperless approach, with access to all electronic records pertaining to each client and matter. These tools, however, are not a substitute for creating a document retention policy and enforcing it to prevent liability. Carol L. Schlein is president of Law Office Systems in Montclair, a training and consulting firm specializing in law firm automation. She is an authorized independent consultant for Time Matters and Billing Matters. Previous columns are on her company website, losinc.com. For information about her quarterly meetings for Time Matters users, check the website or e-mail info@losinc.com. Schlein formerly chaired the Computer and Technology Division of the ABA Law Practice Management Section. Questions for Carol L. Schlein on law office technology may be e-mailed to New Jersey Lawyer at news@njlnews.com or faxed to (908) 226-0165.
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