Keeping Track of Everything

By Tom McNichol

It wasn't long ago that the trick to good records management at a law firm was pretty straightforward: Just keep buying more file cabinets. Some law offices even had large rooms devoted to rows of gunmetal gray filing cabinets stuffed with old records?a musty morgue of long-dead cases and forgotten verdicts.

In the digital age, records management has gotten a lot easier?and a lot harder.

"Records management offers a very big carrot and a very big stick," says Meg Block, managing director with technology consultants Baker Robbins & Company, which has California offices in Los Angeles and San Francisco. "The stick is that in this regulatory age, if your records aren't organized it is horrifically difficult and expensive to try to find all of the relevant information you need and to produce it responsibly. But the carrot is that organizing your records increases the level of certainty on which decisions, judgments, and advice are given."

Another good thing about the digital era is that a single hard drive can hold all the information that used to be housed in a roomful of file cabinets. And you can search electronic records just by punching in a few search terms rather than rifling through every file drawer. There are also specific software tools that act like digital file clerks, storing and managing your records through their entire life cycle. Records management software?such as Accutrac from Iron Mountain, Autonomy iManage from Autonomy, LegalKEY from Open Text Corporation, and CA Records Manager from CA?help track, manage, and apply records-retention policies to both active and inactive records, letting a firm take control of its entire records inventory through a uniform interface. Some firms use these programs in conjunction with document-management software that acts as the initial depository for digital information before it's retained as a record.

However, on the negative side of the ledger, stricter and more-complicated regulations regarding record retention make records management much more vexing, and the cost of losing even a few documents is very high. Now more than ever, law firms need to have a consistent records-management policy in place to preserve the right information for the correct period of time.

The secret sauce in good digital-records management is indexing or "tagging" every document that is produced by the firm, usually assigning it to a specific, numbered case matter. Tagging is the way electronic files from dozens of different sources wind up in the same virtual folder. Records can then be searched by multiple parameters, such as the matter number, the record creator, the intended recipient, the parties involved in reviewing the document, or the date and time the record entered the system.

An operation with poor tagging practices is like a book without an index: Good luck finding what you need. Proper tagging has become especially important with one particular form of communication that's emerged as the single biggest challenge for records management: email.

"Ninety to ninety-five percent of records management is really email management," says Oz Benamram, chief knowledge officer at White & Case, a global firm with 36 offices in 25 countries. "So if you can address email management, you've addressed most of the problem."

The ongoing Intel antitrust litigation (In Re Intel Corp. Microprocessor Antitrust Litig., No. MDL 05-0717) shows how even tech-savvy companies can make major blunders in managing their internal email. In the midst of defending itself against an antitrust lawsuit first filed in 2005, Intel was found to have "lost" about 1,000 emails that were relevant to the case, largely because its internal email-archiving system was poorly designed. The fact that the emails apparently were destroyed after the lawsuit had been filed against the company also didn't help. The trial, originally scheduled for last April, has been pushed back to February 2010.

"I would hate to be the CIO or general counsel who has to explain to the judge why his organization didn't file everything that's work-related," says Benamram. "Because every email is a record. You cannot anticipate today what you won't need tomorrow."

By automatically tagging every email with a client matter number, a firm not only fulfills its retention requirements but also helps lawyers file the information and find it when they need it again. It also helps simplify the information flow within the firm. Instead of having dozens of copies of the same email floating around in each individual in-box, a firm can keep one centralized copy that can be shared with the people who need to access it. It also eliminates the need to have expensive backup procedures and tapes, because all the data is in a secure, centralized location.

One software tool used to tag and manage email threads is Decisiv Email, made by Recommind. (Don't worry, their software is better than their spelling.) Decisiv is designed to automatically tag, categorize, and file email with practically no user involvement.

The software, which was developed to run within Microsoft Outlook, can be set up to tag and file messages in a semi- or fully-automatic mode, depending on the requirements of the firm. Upon sending or receiving an email, the system automatically assesses both the content and parties involved in the communication, then files the message in the appropriate folder. Decisiv Email, Decisiv Email maintains only one copy of the email, thereby reducing storage requirements.

"The beauty of Decisiv is that it is really decisive," says Benamram. "If you do nothing, it will automatically put a file in the right folder. It's really transparent and seamless from the user's perspective. All it takes is one good person on the IT team to do it."

Once all emails in the firm are properly tagged, it's possible to use that information to map all of the work done on a particular case, teasing out exactly who knows what about the case, when they knew it, and how it was communicated to the client. Suddenly, a jumble of seemingly unrelated emails scattered over many machines and locations can be used as a sort of digital Rosetta Stone for a case.

"Email is very data-rich compared to a paper document," says Benamram. "It has all of this information built in. It has the date, the conversation, the discussion thread, all of the parties involved. So if you have all of that tagged to the right client matter number, you're really doing well."

Having a good email-retention scheme also tends to raise the level of electronic discourse in a firm. When attorneys know that the firm is keeping a copy of every email they send, they may find themselves being more judicious in their exchanges with colleagues and clients. As Benamram puts it: "Assuming we give more good advice than bad, it's in our interest to keep a record of everything."

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