Banish the Paper Blizzard, Part 3: Pros and Cons
/Pros
Electronic files don’t gather dust.
Literally. Dust is gross.
Moving to electronic files means that your risk of total loss of all files is shifted to a different kind of risk of loss.
Each lawyer fears a fire most because of the catastrophe that her practice would be if her files burned. A busted pipe near the filing room isn’t too far behind. I don’t know anyone who maintains one set of physical documents at her office and another duplicate set offsite. How would you recreate your files if your office burned down while you were at a CLE?
The benefit of using virtual storage space is that your files can be easily duplicated several times at multiple locations. Should one location be compromised, your data can be retrieved from another location quickly and easily. One can hardly listen to talk radio anymore without hearing several advertisements an hour for automated online data backup systems. Many cloud-based options are available. Regardless of who you are and whether you have a paperless office, you should already be backing up your important data (such as email) on a daily basis. Backups are not something you usually think about until you need it, and by then it is too late.
Document retention policies are at best irrelevant and at worst easier to implement.
With virtual storage space as inexpensive as it is, many firms will choose to archive old client records rather than deleting them. In my trademark prosecution practice, clients can renew their trademark registrations indefinitely by filing appropriate affidavits every ten (10) years. If litigation ever arises over the trademark, even fifty (50) years later, the trademark application file could very well be relevant.
Most lawyers I know look back to similar cases as a starting point for research and drafting pleadings or other documents. If those documents are in a folder among hundreds in a box among thousands at a warehouse across town, the mere existence of those documents provides little benefit to the lawyer needing them. If, however, those records have been archived electronically, they can be retrieved rather quickly.
Even if you do decide to implement a retention policy and discard documents older than a certain age, a paperless office makes it easier to determine which files have had no activity within the specified time period. Sorting files by date is much easier than peering into a stack of boxes for expiration dates written on the boxes.
Documents are accessible.
I alluded to this in the previous section, but when documents are in digital form they can be searched quickly. The digitization solution best for lawyers stores an exact image of the document along with the text of the document that has been interpreted into English by a computer. This process is called OCR, for optical character recognition. Depending on your digitization solution and computer systems you use, the documents can be indexed in various ways to make keyword searching a reality. Would you use a keyword search on your own documents similar to the way Lexis and Westlaw allow you to search cases and other records? I certainly do.
In a paperless office, documents are also accessible in another sense because you can remotely access your files. You truly can work from anywhere. The cloud-based solution I use to backup my documents also lets me keep a copy on my laptop, and any changes I make to a document get synced across several different locations. My physical location is now irrelevant to the work I do.
You can do things with electronic data that simply can’t be accurately or easily done with paper documents.
Electronic documents are simply more flexible than their paper counterparts, particularly where the documents were originally created in an electronic format (as opposed to being converted from paper to digital format). When documents originate in electronic format, you don’t have to worry about the conversion software making errors translating the written words to electronic text. As a general rule, I always ask for subpoenaed documents and other discovery in digital format because it is easier to handle. Furthermore, electronic production is often less costly for all parties involved.
There are many reasons electronic documents are preferable to paper ones. An example will demonstrate my point. In a trademark infringement lawsuit a few years ago, I represented a trademark owner on two theories of trademark infringement. One of the two theories was challenged on the basis that my client had not penetrated the market sufficiently in the southeast United States (Texas to Virginia) to receive damages for infringement of an unregistered trademark. Because the infringer was also my client’s exclusive U.S. distributor, to prove market penetration, I needed to present evidence on the extent of the infringers’ advertising.
During discovery, I subpoenaed the primary phone line for the infringers, which was the telephone number used in all advertising placed on websites and in trade journals. The phone company responded with a CD-ROM containing an electronic document. I was able to request, receive, and extract the phone number, date, and time of over 31,000 phone calls in a few short hours.
I plotted the infringers’ phone calls on a map, as follows:
As the saying goes, “a picture is worth 1,000 words.”[1] The map assisted us in prevailing on our argument against the infringers’ market penetration defense. Had the phone records not been produced electronically, my client would not have been able to present such a succinct and powerful summary of his position.
Cons
Network security becomes even more important.
We are ethically obligated to keep documents and other materials in trust for our clients, and we must do so in a manner that protects the confidences of our clients.[2] When your entire practice is accessible over the Internet, it becomes important to keep your network security filters up to date.
In reality, every law practice that has a computer connected to the Internet should already be using up-to-date network security. Security breaches cost firms time, money, and headache. How much time have you or your office personnel lost because a computer was infected with spam, spyware, or a virus? Prevention really is the best cure.
Computers fail. Back them up.
The manufacturing process for computers is not perfect. Every single computer chip has hundreds of imperfections that affect the way it performs; manufacturers address this unavoidable problem by making the chip redundant so that each process the chip is designed to perform can be executed on different physical parts of the chip. However, the inherent imperfection in computer chips means that they fail. The only way to address the inevitable failure of a computer system, and the data associated with that system, is to back up information that you don’t want to lose.
How will you incorporate legacy documents into a new system?
If you decide to commit to a new system, you must decide what to do with the paper documents you have now. Three options exist. First, you can fully incorporate old files into the new system by treating each individual document in the old file as if it was a newly-incoming document. This approach is time-intensive and detracts from your employees’ day-to-day activities.
The second approach is to digitize the entire file in a single batch. Finding a document after using this approach is exactly the same as opening a box and browsing for the correct document. This is a good middle ground because the file is still more accessible than it would be if it were in a box (because you can search the file), but you have to dig a little to find what you’re seeking.
The third approach is to maintain current document retention protocols for your old documents, which can be phased out over time. This is an acceptable but archaic method that has been used for hundreds of years.
In deciding how to handle old files, you must perform a cost/benefit analysis for your particular situation.
Attorneys are resistant to change.
At a CLE I attended once, a sitting judge cracked a joke about having a hard time removing the green highlighter ink from his computer screen. Attorneys, especially older ones, distrust electronic recordkeeping because they have been trained to believe that the more paper involved in a file, the more money the file is worth. Most lawyers I know prefer to edit drafts of paper documents prior to making changes to word processing documents. Also, lawyers as a group like to make notes in margins of books and opposing parties’ briefs for later reference.
I understand these arguments, and to an extent I still use some of these methods in my own practice. As I said earlier, no lawyer’s office will be truly paperless, at least not in my lifetime. The fact that paper is more convenient in some aspects of your practice is acceptable and understandable. The purpose of implementing a paperless office is to eliminate unnecessary and duplicative paper costs, rather than entirely eliminating the use of paper. I stated at the beginning of this series that the purpose of a paperless office was to think intelligently about workflows and the use of paper. If using paper sometimes facilitates efficient work, then by all means use paper in that situation.
[1] This saying is codified in Ark. R. Evid. 1006 and Fed. R. Evid. 1006, which both state: “The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.”
[2] Ark. R. Prof. Conduct 1.6(a) (“A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent[.]”).
