Information flows in and out of firms constantly with varying form and function, including e-mail, faxes, engagement letters and dockets.  And as physical and electronic records continue to increase in volume and complexity, efficient and accurate records management becomes more difficult from both procedural and technological perspectives.  Today’s complex legal, regulatory and best practices mandates have only added to this challenge and elevated the importance of stellar records management.  Anything that falls short puts both firm and client at risk.  If your firm has not revisited its records management technology, policies and procedures from a risk management perspective, the time is now.   

Then ... and Now
When your firm first implemented records management software, the goal was most likely to eliminate manual processes and streamline information storage and retrieval.  In reviewing software, the focus was probably on bar coding, searching, reports, etc.  Today, your focus has undoubtedly expanded to include the handling of electronic records, including e-mail and images.  As you’ve evolved your records management system to keep up with technology, have you also updated it for optimal firm and client protection? 

For example, suppose that the discovery phase of litigation filed against a client required the reconstruction of records that occurred six years ago.  How quickly and thoroughly would your firm be able to access, review and produce all records requested (both physical and electronic)?  If you could produce the records in time, how much would it cost?  Does your firm have the in-house capability needed to do so?  Can your firm demonstrate the credibility of its electronic records so that they hold up in court?  Conversely, is your firm at risk from unnecessarily retained e-mail messages that could affect verdict outcomes?  Does your firm have the capability to search for relevant e-mail content in order to produce required records?  It’s critical that your attorneys are aware of and can properly manage (e.g., produce or destroy) all client-related information.  Not knowing what’s out there is not a defense.  The onus of protection is on the firm, and without a comprehensive best practice records management program in place, and the technology needed to support it, your firm is at risk. 

Check It Out
Proactively conduct a records management technology audit to be sure your current systems and practices are addressing your firm’s risk management susceptibility in order to:

Understand the legal requirements and ethical standards involved.  Consult your firm’s ethics committee and/or risk management partner and records management staff in order to understand the policies and procedures that they’ve implemented or plan to implement.  Get a clear picture of the firm’s responsibility as it pertains to client information and how technology will come into play.  What constitutes a record today (e.g., fax, voicemail, images, e-mail subject line, e-mail attachment)?  Who is responsible for determining what a record is?  How long must records be retained?  What is the process for reviewing records prior to destruction?  What are the variables (e.g., area of law retention mandates, client-specified document return)? 

Evaluate current processes and technology for risk susceptibility.  What technologies are currently being utilized to assist with retention of both physical and electronic files?  How are electronic records being declared?  How are they stored?  Is the architecture scalable enough to hold the inevitable volume?  Is the storage method practical long-term?  Can electronic records be easily searched and produced?  Can they be assigned retention schedules?  Look for holes in your firm’s current practices and identify opportunities for implementing technologies to close those gaps and reduce risk. 

Assess needs using a consistent, content-driven approach.  As you plan the evolution of your firm’s records management technology, strive for consistent management of all information regardless of source of origin or media type, including physical files, document management systems (DMS), voicemail, e-mail, faxes and images.  Look for integration opportunities with firm technologies in other areas in order to further reduce risk.  For example, integrating with docketing software saves time and reduces human error by automatically creating pleadings from docketed text.  Further, integration with conflicts systems extends the thoroughness and accuracy of conflicts reports and helps speed the new business process.

Implement new technologies as needed.  Look for products that take your records management program to the next level, yet still adhere to your firm’s internal culture, risk protocols and workflow.  For long-term success, think flexible, robust and user-friendly.  Don’t change your requirements to adapt to a product or vendor — they should accommodate you.  Ideally, seek products that understand the legal environment and have functionality specific to those needs.  Work with vendors that understand current records management issues, risk management protocols and best practices and have developed products accordingly.  Integration with other firm systems is an important part of firmwide risk management and efficiency. 

An Ounce of Protection
No longer is it just a matter of records management efficiency or improving the bottom line.  Firms have a significant responsibility — and potential liability — when it comes to information management.  Do your part to protect your firm by keeping abreast of both current technologies and risk management issues and conducting an annual review as outlined above.
--------------------------------------------------------------------------------
Understanding Retention and Risk

Retention schedules are necessary in order to manage the complete records lifestyle, systematically and legally implement destruction, control storage and promote accountability.  Most importantly, retention policies help ensure compliance with ethical, legal, regulatory and firm requirements.  To be effective, retention schedules should be media-neutral, consistently applied and periodically reviewed and updated.  In addition to protecting your firm and clients from risk, retention schedules reduce the cost of discovery, help quantify information assets, improve system and process efficiency and significantly reduce overhead. 

Electronic records are not exempt from discovery and should be subject to the same retention rules as your firm’s physical files.  As such, the process in which your firm’s electronic records are declared, retrieved and destroyed is critical.  Simply leaving electronic files in e-mail, document management or imaging systems is not sufficient because they do not allow for the application of retention schedules.  In a time when regulations (e.g., Sarbanes-Oxley, HIPAA) regarding records discovery are in place and evidence from unnecessarily retained e-mail can affect verdict outcomes, not having guidelines in place for electronic records management is an unacceptable risk.  Ideally, electronic files should be profiled using the same taxonomy as physical files, assigned a retention period and then stored along with other case- related files for efficient retrieval.
--------------------------------------------------------------------------------Hot Topic: E-Mail Repository

Think about all the e-mail messages an attorney can receive each  day, possibly hundreds.  Now multiply that number across all firm attorneys and office locations.  It’s easy to see why e-mail records management, storage and retrieval can seem overwhelming.  It’s important to understand your e-mail storage options.  Keeping the e-mail messages on your firm’s e-mail server or moving it to your DMS is not an effective long-term solution.  E-mail repositories that integrate with your firm’s records management system are the most viable option.  There are many options available — don’t settle for a one-size-fits-all approach or provider mandated by your records management vendor.  Look for scalable software that is flexible to meet your network typology and specific firm needs.

About our author

Kandace Donovan is Executive Vice President of LegalKEY Technologies, Inc., which provides practice support systems that improve the way information flows and is utilized in law firms.  Kandace can be reached at 303.823.8899 or at kdonovan@legalkey.com.