Digital White Papers

ILTA WHITE PAPER: NOVEMBER 2015 WWW.ILTANET.ORG 19 Who decides what can be shredded? That sounds time-consuming. What must I do to protect myself so we don't shred the wrong materials? If a lawyer delegates a decision to shred, the assistant must understand and follow the rules for preservation, rather than make an ad hoc decision about each document. They should resolve any doubts by confirming with a responsible lawyer. A scanning and shredding procedure can also include a confirmation or quality control step prior to shredding. If scanned into the practice's document management system (DMS), an automated or manual process can be initiated for retention or shredding. This can be as simple as a including a field in the DMS where the lawyer responsible for the documents (usually profiled as "author" in the DMS) could see a list of the documents held for shredding as a saved search. A quick scan of that list, with the ability to see the scans in the DMS, could serve well as a confirmation procedure. With mobile access to the DMS, this check could be straightforward on a tablet device. Several automated and robust programs are available that can include the records department and the copy center for a more complete system. If some documents must be kept as originals, how do I determine what they are? Does it make sense to scan if we can't shred everything? The distinctions between documents that can be destroyed or retained mean that any program for shredding of documents after scanning must be based on a carefully planned and executed set of rules and guidance for lawyers and staff. Lawyers and staff already must observe high levels of care in nearly all of their activities to observe obligations of confidentiality. This discipline is no harder. Some of the categories of documents to be retained should be very clear, such as "wet signature" executed copies of contracts. Others require communication with the client or third party providing them, such as confirming whether the copies provided are the only ones available. Most documents clearly fall into a category that allows scanning and destruction. There are significant benefits to scanning, even when original documents must be preserved: • Once scanned, the original document can be stored without handling, protecting it from damage, loss of pages, being filed out of order or just lost. • All authorized lawyers and staff can have real- time access to the document simultaneously. Ethics Opinion 357 (2010) of the District of Columbia Bar describes several categories of documents that should not be destroyed, including: • A client's intrinsically valuable, original paper documents, such as securities, negotiable instruments, deeds, settlement agreements and wills. • Documents which the lawyer has a legal obligation to preserve. • Documents for which an electronic version would fail to "protect the [current or former] client's interests." • Original documents provided by the client when they are not otherwise filed or recorded in the public records. The ethics opinion also cautions lawyers to confirm explicitly that the client does not want the documents returned and consents to their destruction. The ethics opinion cautions "that if he or she does destroy paper files, he may, in some cases, absent agreement with the client to the contrary, be required in the future to provide the electronic records in paper form at the client's request and possibly at the lawyer's expense…" Similar analysis can be found in ethics opinions of other states, including Missouri Formal Opinion 127 (2009) and Maine Formal Opinion 183 (2004). TOP 12 OBJECTIONS TO SCANNING AND DESTROYING PAPER

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