Volume 11, no. 3
In & Out: Disposing of Client Files
By David J. Abeshouse
Paper files take up physical space; electronic files usurp virtual space; and both contribute to logistical and psychic clutter. What should be paramount in the minds of lawyers when considering whether and how to dispose of client files?
Substance: What to Toss, What to Keep?
The starting point here is the question, “Who owns the file?” First check your governing state law. However, as a general rule, clients have substantial rights to the contents of their files. A frequent exception to this: A lawyer need not turn over the lawyer’s own personal notes, even if maintained in the file. They were created for the private and personal use of the lawyer, thereby distinguishing them from other file documents.
In general, before disposing of client files, they should be offered to the client, even if the lawyer sent copies of documents during the course of the matter. The offer can come at the conclusion of the matter (which creates the issue of whether the lawyer feels compelled to keep a copy of important file documents for protective purposes, such as if the client loses the file or commences a malpractice suit against the lawyer); more often it is done after the passage of a period of time, which may vary with the nature of the matter.
Timing: When to Dispose, How Long to Keep?
The retention period can vary with the type of matter, and with the sorts of claims that may arise from the file in future. The retention period should be measured, at a minimum, by the longest statute of limitations for any claim that could arise from the subject matter of the file, plus some rational additional period to allow for tolling provisions and “knew or should have known” fraud discovery rules pertaining to statutes of limitations. Except in matters potentially involving the longest limitations periods, a general rule of retaining files for 10 years hardly could be deemed intentional spoliation or imprudent, although there are some sorts of documents that should be retained in perpetuity, predicated on the judgment of the lawyer who handled the matter. Shorter periods carry potentially greater risks.
Method: How to Dispose?
Electronic storage capacity is available in more forms and is less expensive than ever, to the point that one really need not consider seriously meticulous purging of electronic files on a periodic basis. Rather, the issue arises when a lawyer needs to discard the physical embodiment of those e-files: typically, the hard drive or the CD. Most lawyers now know that merely “deleting” files from the hard drive before selling, donating, or otherwise disposing of the computer CPU simply is inadequate because deleted files are readily recoverable. To truly wipe clean a hard drive of all remnants of confidential client information requires either sophisticated, military-level software or actual physical destruction via hammer, fire, or the like. Some federal statutes (including the Health Insurance Portability and Accountability Act and the Sarbanes-Oxley Act) effectively require as much. Interestingly, there are service companies that dispose of CDs by recycling (grinding old CDs and using the product to make new ones).
Similarly, if you are disinclined or unable to shred your own discarded file documents (using personal or small office shredding devices that range from basic strip shredders to finer cross-cut shredders to machines that can handle staples or even paper clips), there also are document destruction companies that will pick up your old files, destroy them at your office or their own site, and certify to you in writing the particulars for your permanent records.
David J. Abeshouse practices business litigation and alternative dispute resolution in Uniondale, Long Island, New York. His Web site is www.BizLawNY.com, and he can be reached at DavidLaw@OptOnLine.net.