GPSOLO December 2008
Electronic Records Management in a Small Office
Lawyers in a small office or solo environment are confronted with a wide array of information technologies ranging from time-tracking programs to PDAs to e-mail. In theory these information management tools make a lawyer more efficient, more productive, and presumably richer and happier in the bargain. Used properly, they just might. Used poorly, however, they may not help much at all, and they may even make a lawyer less efficient.
The Realities of Information Systems
The traditional paper file in folders, buckets, and boxes is still alive and kicking in most law offices. It’s not, however, anywhere near as robust and healthy as it once was. For one thing, a high percentage of its contents are printouts or duplicates of something originally created on a computer or received from elsewhere on a computer. Those copies are still almost certainly there someplace. Worse, a good many of the electronic data objects related to a matter will probably never make it into the paper file. Even when a lawyer takes the approach of printing out e-mail to file, some inevitably get missed unless he or she is very diligent; and of course, if other people are working on the matter, they must be diligent also, and some are almost certainly not. Other electronic data that are now commonly created during a matter—spreadsheets, databases, PowerPoint presentations, etc.—pose different and often formidable problems when it comes to incorporating them into a paper file; as a result, most never are. The “file” has thus become a distributed data set, some of which is in a paper file (or “files” if more than one lawyer works on the matter), but much or most of which is not.
The Filing “System” Fallacy
The situation is exacerbated by the distributed nature of computer systems and the modern work environment. Not only is the entire “file” not in the paper file, it probably isn’t in any one other place, either. It’s in an assortment of directories and drives on the office system, as well as an additional assortment of devices such as laptops, PDAs, and flash drives not permanently connected to the system.
In contrast to a paper filing system, which is often a purpose-designed, reasonably well ordered scheme with standard indexing in the form of a file plan and using standard file names and other conventions, most computer systems are disorganized, particularly in smaller settings run without benefit of much in the way of administrative and IT policies and procedures. There are often no standard filing or data structures or other conventions, and lawyers and others are simply left to do what they will. At the very least, this results in a complete lack of consistency—documents are given arbitrary names that differ from author to author and are placed in directory structures that differ from owner to owner. This situation is compounded by the fact that few people spend much time managing their data after its creation and give very little thought to organizational schemes or naming conventions.
In many cases the result is chaos: Obsolete material, drafts, and multiple duplicates pile up, often with confusing or similar names and in multiple places, not only increasing the amount of material that must be tediously searched through, but also posing a real risk that the wrong version of a document will be found and used.
The potential difficulty of this situation is compounded by the fact that much of the data in question is not the lawyer’s exclusive property; the lawyer shares ownership of it with the client. In most jurisdictions, the matter file is defined as containing not only the contents of the traditional folder or bucket but virtually all data created or received in the course of the representation, and the client has a right to ask for and receive a copy of most or all of it.
Because this data is client property and is important to effective representation, the lawyer has an obligation to manage it effectively. That means compliance with the standard ethics requirements—confidentiality, avoidance of prejudice and so on, and a duty to provide clients with a copy of the entire “file” if they should ask for it. And of course, all of the day-to-day concerns—meeting filing deadlines, billing, communication with opposing counsel—must be addressed on a continual basis.
What to Do
When viewed in the context of the average, not-very-well-organized law office computer system, management of these issues becomes a formidable proposition. If the bits of the matter file are sprinkled over even a small network—or for that matter, even a single hard drive—and are poorly named, managing them in a way that conforms to all of these requirements and producing them on demand for a client can be problematic. That’s where technology is supposed to help us. Our technology tools will organize our data and permit us to quickly put our finger on anything we need. Or at least, that’s the theory.
The fly in the ointment is that all these tools implement organizational rules. If they have good rules to work with and are used properly, everything works as planned. But (and it’s a big but) they don’t generally come with much in the way of useful rules imbedded in them. That’s your job. Consider the scanner attached to the computer I’m writing this article on. By default it stores everything I scan into a folder called “My Scans.” It doesn’t matter what it is—Supreme Court pleading, picture of my kids, bill from the IRS, letter from my mother—it’s all in My Scans, named whatever I happened to think of at that moment. Or it would be if I let it. It’s not because I have built a data structure in the form of carefully thought-out folders and subfolders, and I have some rules that govern what each of these items is named. Rules of that sort are called “records and information management” (RIM). Applying the rules means that things are put in the right place and are named something predictable, and this means well-organized information. The bottom line is that you can find your stuff, and that means both a happy lawyer and a happy client.
Everything else being equal, the smaller a pile is, the easier it is to manage. A lawyer attempting to get his or her records system in order should therefore consider the various ways that the pile can be reduced:
File destruction and disposition. Although ethics rules impose various duties with respect to client files, lawyers do not have a general duty to preserve all files permanently. Similarly, there is no requirement that any run-of-the-mill business record be retained permanently, and most have both legal retention periods and business utility periods that are short—generally a few years. Records of all kinds, including electronic records, can therefore be cycled through the records system in an orderly manner. This keeps the total size of the collection to a minimum, consisting only of those records for which a legal or ethical duty, or a legitimate business need, exists. Not only does this reduce the total volume under management, thereby directly saving staff time, equipment, space, and other costs, it has an added benefit: Older records tend to be the most poorly organized; they are often boxed haphazardly and put in basements and off-site storage in disorganized fashion, or if electronic, are transferred onto disks and tapes with poor labeling and not much thought to the organization of the contents. This makes search and retrieval of them particularly onerous. Purging these older records leaves a set that, on average, will be more organized and easier to search.
Drafts, duplicates, transient records, and non-record material. Most records systems, and particularly electronic records systems, contain lots of material in these categories. A paper client file, may, for example, contain duplicates of pleadings and other documents received from various places, multiple drafts of various documents, an assortment of notes and similar items of very short-term use and value, and extraneous material of various kinds. If more than one lawyer works on a matter, the entire file is likely to exist in duplicate copies for each lawyer. Electronic systems are, if anything, worse—the apparently unlimited ability to create and send drafts and duplicates, and to store them in many locations, creates a quagmire of duplicative and useless material, resulting in confusion and a waste of time when searching. A bit of thoughtful organization here can free up surprisingly large amounts of time.
Organization. Regardless of the size of a records collection, poor organization will cause any interaction with it to be less efficient. Poorly organized paper files require tedious leafing through to locate a particular item (particularly if the file contains many duplicates or near-duplicates), and electronic systems are, again, if anything worse. Even the most rudimentary organization, if consistently applied, will materially improve a bad situation. The tools to fix this are conceptually simple: (1) an index for placing records within files and files within the system (the traditional “file plan”) or in the case of electronic records, its virtual equivalent, standard data structures (usefully named folders and sub-folders) within which to place electronic objects; (2) standard physical or virtual locations for records (e.g., all the 2007 tax stuff is in a single folder on the main office server, called “2007 tax forms”); and (3) standard (and useful) names for the various kinds of records within the system (e.g., “2007 IRS Form 1122” not “frm 1122” one time, “IRS 1122” the next time, and “tax_form” the time after that).
Implementation of RIM concepts requires development of written policies and procedures in all but the smallest environments. Even in a very small environment, a short set of procedures, combined with a standard indexing system and a naming and versioning convention for documents, will yield surprisingly good results. In general, these policies and procedures will consist of one or more of the following:
1. A RIM policy, including policies for drafts, duplicates, and transient records;
2. A records retention schedule;
3. A standard data structure or indexing scheme;
4. A naming and versioning convention for records and record sets; and
5. Procedures that are, in effect, how-to instructions for the above.
Some of these documents can be iterative in nature—a good policy now can be replaced by a better policy later. However, in the case of data structures, indices, and naming, it is highly advisable to design and vet them very carefully before implementation. A poor indexing scheme will yield poor search results, and re-indexing large volumes of paper documents or electronic data is a difficult and time-consuming proposition. You want to get it right the first time.
Once these tools are created, they must be applied. In a paper system, this means organizing files. Although tedious, this is a straightforward process of placing documents into properly labeled folders and the folders into the correct drawer or shelf per the file plan. In the case of an electronic system, a substantial amount of configuration and moving of files may be required.
Doing this correctly offers the opportunity—often an easy one—to avoid a number of problems. For example, if laptop computers are in use, docking stations and software can be installed that automatically synchronize the laptop data with that of the main system, thus avoiding one of the more vexing issues often faced by organizations using laptops: data that is on laptops but isn’t on the main system or vice versa. PDAs offer a similar opportunity. They can be configured so that e-mail sent to the PDA is a copy of an e-mail also maintained on the main system. In like manner, another common problem can be avoided by the simple device of putting system backup tapes on a short rotation cycle. The computer system may also be amenable to similar tweaks such as automatically deleting obsolete calendaring information and purging temp files.
The process of reorganizing your files and throwing away all of the junk will be a tedious one, but your patience will be rewarded. Once you get the hang of using your new system consistently, you are likely to be amazed at the difference in your ability to find and manage your records and information.
Systems do something. Before you acquire one, you have to know what it is you want it to do. Consider an imaging system: What better way to get rid of those piles of paper cluttering the office than by imaging everything? When you need it, you just hit a few keys, and there it is. Or not. Remember, garbage in, garbage out.
Here are a few of the considerations that must be taken into account if the imaging system is going to perform as advertised:
• Exactly what do we scan?
• How is it going to be indexed and organized?
• Should scans involve optical character recognition (OCR) so we can do text searches?
• What kind of performance is needed from our scanners?
• What will the fully loaded cost of the system be?
• How much space will it require?
• What kind of workflow and space design is needed to keep up with the volume?
• What daily throughput is needed to keep up with the volumes of documents we create and receive?
• How many people scanning will it take to keep up with anticipated volumes?
• Who are these people that will do all of this scanning? When will they do it? Will they really have the time?
If this isn’t all very carefully thought through, you’ll wind up with a very large number of badly organized image files that are next to impossible to search. Or you’ll wind up with the worst of both worlds—some of your documents will be in a badly organized imaging system and the rest will be in disorganized piles in the scanning area, waiting to be scanned. Neither is a pretty sight.
Any other information technologies you might be planning to acquire will demand a similar planning process:
• What task are we trying to accomplish?
• Will this tool actually perform that task?
• How will we have to configure it to make it do the task?
• What other tools, either technological or conceptual, will we need to make this tool work properly?
• Is this tool compatible with our other tools and the way we run our business processes?
• Do we have the manpower and will-power to use and manage this tool effectively?
The Long-Term Payoff
It may seem that RIM is a painful grind, but that isn’t so. To be sure, you have to spend some time purging, organizing, and developing good tools, but after the initial push, RIM can be largely self-executing. Once you get used to doing things the new way, many tasks such as naming files correctly and saving them in the right location become automatic and take no more of your time than the old, inefficient way.
Beyond this, RIM principles do not change over time, and the conceptual tools change only gradually, if at all. Retention schedules and indices may need periodic tweaking and revision, but this will be minor if the initial effort was high quality and your firm has not undergone significant changes. The RIM edifice you’ve built will have a long service life and will need only routine service and repairs. The time spent constructing it will have been well spent.
John Montaña is vice president and general counsel of PelliGroup, Inc., a consultancy specializing in all aspects of information and records lifecycle management. He may be reached at firstname.lastname@example.org.