Traditional Discovery and e-Discovery: Managing Legal Documents in all their Forms
For most corporate law departments, preparing for the possibility of electronic discovery (e-discovery) is a major concern, while discovery that involves paper documents is downplayed or even overlooked. In 1975, Businessweek published an article anticipating the “paperless office” by 1995; we weren’t there then and we’re certainly not there today. Despite the rise of digital documents, many industries are still generating a remarkable amount of paper files. In fact, the risks and costs associated with physical records can be just as high, if not higher than digital.
What can a legal department do to ensure its organization has both its physical and digital records in order? First and foremost, each company should have a data information management program customized to their specific company. Here are some general guidelines to get you started.
- Review all documents, regardless of format. Thoroughly assess your data inventory management program to ensure it adequately covers both electronic data and paper documents. The program should be able to tell you what the company has in storage, where the data is stored, who is in charge of it, how to access it if and when you need it, and how long it will take to retrieve.
- Re-examine the company’s records retention policy. From a compliance standpoint, make sure your policies are up to date with current regulations. For example, in many countries, patient data privacy regulations specify exactly the type of healthcare documents/records that must be protected from disclosure and the standards for protecting and discarding these records. Should a lawsuit or investigation occur and certain documents in a discovery request have been destroyed—in full compliance with the company’s retention policy—you’re in a better position having to explain why certain documents were destroyed in the absence of consistent guidelines.
- Enforce the document retention policy throughout the organization. According to the industry group ARMA (Association of Records Managers and Administrators) International, some 93 percent of Fortune 1000 companies have a document retention policy in place, yet only 38 percent enforce it. The best retention policy is useless if it isn’t being enforced on a daily basis.
- Consider outsourcing options. This is an especially compelling option for larger companies. Office space is expensive, so storing paper documents and records off-site can be more affordable and, in many cases, safer. Rather than relying on in-house archivists who may or may not be with the company in five years, many organizations choose offsite facilities that provide indexing and records archiving services that make it easier to meet their discovery requirements. Depending on the vendor, these facilities will meet strict measures of security, fire prevention and surveillance.
The world may someday become paperless, but that day has not yet arrived for many organizations. With paper records still ubiquitous, corporate law departments must ensure that both traditional discovery and e-discovery are securely managed for many years to come.