Yes, You Scan -- Take No Chances With Your Records

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In the business of law, paper isn't dead, but it's certainly not the record-keeping mainstay it once was. And in terms of durability, nothing has changed: It's as delicate as ever.

There are multiple benefits involved in scanning paper documents into electronic files. It can help lawyers meet their obligation to preserve client records and reduce storage clutter.

Perhaps most notably, lawyers have a file-preservation obligation such that a court can inflict sanctions if it finds during discovery that relevant documents have not been safely preserved.

Every firm or legal organization should have a records-management and retention policy that addresses the five steps every document goes through, paper or electronic:

  • Creation by the individual
  • Distribution to intended recipients
  • Storage of the document
  • Retention of the document based on assessment of its significance and value
  • Preservation in a manner that allows the document to be retrieved and searched

Once the organization creates a records-management plan that assesses what exists, it should also develop best practices and procedures for storing and accessing those documents.

Elements of an effective retention and management policy should include the following:

  • Clearly state who (whether by individual name or job title) is the person with retention authority for documents by category type.
  • Properly define document to include information of all types: electronic or paper, historical record or temporary file.
  • Indicate the length of time for which different kinds of documents should be retained, and identify the people who should have access to them.
  • Clearly state why retention is necessary (such as to comply with legal or tax obligations).

In terms of individual law firms' policies, the rules and specific time periods for storing or destroying client files vary by jurisdiction. Some states require a lawyer to securely store a client's files for 10 years after completion or termination of the representation unless the attorney and client make other arrangements.

In addition, some government agencies, such as the U.S. Securities and Exchange Commission, have industry-specific requirements for how long certain specialized documents should be kept, and the IRS requires records for certain tax purposes to be kept as long as seven years.

Otherwise, there is no universal law of document retention except to comply with the common law requirement to produce documents in litigation. And that is where scanning is an especially appropriate and effective strategy.

An excellent way that any organization can be prepared for providing the huge number of documents that may be required in a litigation is by scanning those documents so they are searchable electronically in compliance with the federal rules of evidence.

Since 2006, the Federal Rules of Civil Procedure require producing electronic documents and data for trial. Defendants and their counsel, therefore, must carry out this duty to preserve and provide electronically stored information — or ESI — or face penalties from the court.

ESI can encompass a huge number of documents. One gigabyte of ESI can equal up to 75,000 hard-copy pages, and the largest lawsuits may require production of up to one terabyte (1,000 gigabytes) of material, or 500 million pages of paper — approximately the height of 58 Empire State Buildings.

The information must be produced quickly, since the FRCP currently allows only a 120-day window after a lawsuit is filed to identify, analyze and classify relevant documents.

Scanning documents into searchable PDF files has become routine. But it's still easy to miss a document or two, or 10, or an entire file-heading's worth. So be sure to remember those dusty files that are out of sight and out of mind after having been clipped, stapled or sealed for safety (20th-century safety, that is).

Be prepared by having all key documents scanned in keeping with the requirements of your records retention policy. It will prove essential in litigation and settlement — and save hundreds of thousands of dollars in discovery costs.

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