Best Practices Exchange: Technology

Presented at the ALA National Conference
Summarized by Steve Gilliland
May 2, 2006
 

I attended the Best Practices Exchange on Technology seminar facilitated by Ross L. Kodner of MicroLaw, Inc.  For those not familiar with Ross Kodner and his company, MicroLaw Inc., is a 21-year old technology and law practice management consultancy firm located in Milwaukee, Wisconsin. Mr. Kodner is a prolific speaker and has recently received the 2006 Techno-Lawyer Contributor of the Year Award from the Techno-Lawyer community.

Although the Best Practices Exchange was essentially wide open in terms of potential for discussion, the majority of the two hours was spent discussing primarily issues relating to a paperless office (or rather paper-less as Mr. Kodner describes) and electronic discovery. Although the topic of electronic discovery is still frightening to many, most of those in attendance were at least familiar with the issues involved. I found the discussions surrounding the paperless office to probably be more uncharted territory for the law firm environment.

When discussing the topic of a paperless office, the thing that becomes readily apparent is the fact that paper is never eliminated. The storage of paper will always be an issue. What one finds are issues relating to electronic storage of documents combined with physical storage of paper documents. Very few of those firms in attendance have gone truly paperless. Most of the attendees seem to be exploring the issue of a paperless office and a few of the advanced users have actually implemented a strategy. Where you fall within those first two subcategories depends on the issues with which you are faced.

For those who are investigating the issue of going paperless, there are many considerations. First of all, do you have the basic equipment necessary for you to implement such a strategy? Are your computers sufficiently new that they have a reasonable processor speed, have reasonable balance of RAM memory, and have reasonable amounts of hard drive space to store documents locally? In terms of bigger IT issues, are your servers capable? Do you have storage mechanisms available to you? Is your software up-to-date? If your answer to many of those questions is "no" then you have to determine capital expenditures: buy versus lease options on equipment, etc. Some "smart leasing" programs permit the inclusion of both software and services. Services may include technical consulting personnel needed to supplement an internal IT department.

Another consideration is to look at scanning and imaging hardware and software necessary for the office. Some of the firms discussed the fact they had chosen only a few lawyers within the firm to go paperless while other firms have taken the plunge and have gone paperless firm-wide. One of the things in terms of equipment that Mr. Kodner points out is that he thinks it makes sense to deploy personal scanners/printers on each of the secretarial stations (rather than having a centralized scanning location) to allow the secretaries and, in some cases, their attorneys to scan in material in almost "real time." Part of the efficiencies in a paperless office are only realized when the information is current and up-to-date. A drawback to the centralized scanning configuration is that you may not get the letters, pleadings, etc. into the system as quickly as one might require.

The scanned image is ideally stored in a universally readable PDF format. We are not talking about any level of OCR, but just an image of the document. That is really all you need for purposes of the paperless office. Almost any document manager would take care of organizing the documents within your file system. Kodner notes that many document management software packages have a PDF search capability.

As you might expect, this takes an awful lot of planning and consideration prior to implementation. Not only do you have to have some of the technical and equipment issues worked out beforehand, one must also consider a logical file/storage system. Although no concrete recommendations were made, it was generally felt that the simpler, the better. It may be as simple as setting up each case with its own file folders and then breaking down that file folder into subfiles with items such as pleadings, discovery, correspondence, witnesses, etc.

In conjunction with the paperless office, participants also discussed practice management software. The idea behind this is to use technology to make the lawyers more efficient and therefore recover more billable time out of the day. Mr. Kodner argues that if you can recover 15 minutes per day per lawyer in billable time and 30 minutes per day per paralegal on billable time, the return on investment can be staggering. The idea being that case management software combined with implementation of a paper-LESS office allows the lawyers to find information more quickly and efficiently and reducing wasted time spent digging through a file drawer for the information they need. One can envision a Google-type search on a particular subject within an electronic case file with the results immediately accessible to the attorney. None of those in attendance were 100% there yet, but those who have gone a long way toward the paperless office seemed to be quite pleased with the results.

There was a brief discussion on security issues relating to electronic data. When you begin retiring old computers, one needs to consider information contained on the hard-drives. I think everybody today is aware that simply deleting the file does not remove the file from your computer. Deleting the file simply removes reference to the file from the operating system, but the file remains completely intact on your system. It is easily retrieved by those with even a rudimentary level of sophistication. For example, going to the Recycle Bin and right-clicking allows you an "undelete" option. It was suggested that files should be "shredded" using electronic file shredding software that works by overwriting the data you want to be removed.

Another issue to consider from a legal and ethical perspective is to comply with all software license agreements. Mr. Kodner notes that you must remove all licensed software you do not intend to formally transfer with the PC system. It is best to have a written formal computer usage policy for the disposal of computer equipment. One could also hire an outside consultant to address issues like file shredding, removal of software, etc.

Finally, there are pure environmental issues to consider. Computers and computer equipment contain high levels of lead. Simply throwing them in the trash will create land-fill problems. It is preferable to use a computer recycling center for this equipment. Again, care must be taken to address the items noted above before the computer equipment is recycled.

The subject of electronic discovery was addressed by first discussing an overview of the topic. It should come as no surprise to anyone that the increased use of computers has proliferated to every level of society from business, to government and to individuals. It was noted that that 97% of recorded information is now created electronically. More than 80% of corporate information now exists in electronic form. More facts and figures; 25 million email messages are sent every hour (which translates to 4 trillion per day in North America) and one in twenty companies have battled a workplace lawsuit triggered by email. Without question, electronic discovery will affect everyone. The consequences of poor information management include spoliation of evidence (can lead to severe penalties including substantial financial sanctions), loss of key evidence for use at trial, the dismissal of the case and potentially attorney malpractice. Spoliation of evidence includes inadvertent destruction, intentional destruction and simply, inadequate document retention policies.

Electronic evidence is key to the issue of e-discovery. Mr. Kodner referred to the 1995 case Anti-Monopoly, Inc. v. Hasbro, Inc

in which it was cited "Today it is black letter law that computerized data is discovererable if relevant". The average worker generates 20-60 business related emails per day. Discovery propounded today routinely includes references to electronic documents. Complicating matters is the fact that in many cases today document retention policies don't exist. Even when they do exist policies are not enforced. In fact, Mr. Kodner noted that 10% of employees will simply ignore compliance orders. Preservation of evidence letters put your clients on notice and failure to preserve could result in severe penalties.

Metadata is simply data about data. Metadata can be found in commonly used programs such as Word, WordPerfect, Excel, PowerPoint. Evidence can hide in the metadata. Such evidence is data embedded in the file that details or gives more attributes about the file such as date/time created, accessed and modified. It was noted that many applications have hidden embedded data. For example, a Microsoft Word metadata file may contain the author, number of revisions and time and date of the last time the document was printed. Some of all of this data may be relevant to litigation. Another example of metadata can be found by looking at the process of printing a document. When a print command is made, rarely is the file sent directly to the printer. More often, the computer sends a graphic representation of the file which is known as an enhanced metafile (EMF) and it is written to the disk, usually in a temporary directory. After the file is successfully printed the EMF is deleted by the operating system. That EMF may be the only evidence of the document's existence and may become a vital piece of evidence.

Mr. Kodner outlined things you should do the day you learn your client may be sued. Such things include forwarding any Preservation of Evidence letters or notice from the other side, writing your own Notice to client, prepare a memo to be circulated to all involved parties on your side, explain spoliation and its consequences and advise your client not to look for evidence themselves. Other things to consider include; cease overwriting backup media, unplug certain relevant machines and keep then under lock and key, do not defrag, load new software, delete applications or get rid of computers. The act of booting a computer changes hundreds of file access times which may compromise a timeline relevant to the litigation.

E-Discovery and related activities can be expensive. Attorneys will likely depose a number of people in the IT department in addition to managers and selected users. Mr. Kodner notes that typically, it is the producing party that pays for the computer forensics. Courts consider the resources of the producing party and the extent of burden. E-discovery issues will likely involve a computer forensics consultant or vendor. Such a consultant can not only provide the technical expertise for evidence acquisition and archival but also the forensic analysis and expert witness testimony. These consultants and vendors can be expensive. As an example, Mr. Kodner's firm charges $1,000.00 to image a hard drive. Larger firms may charge more. Just as with going to a paperless office, e-discovery issues take planning and thought before implementation to avoid excessive costs.

It was clear to me from attending this discussion; law firms will experience a paperless (or paper less) office environment in our future and e-discovery will touch each of our clients. The prospect is daunting and the road to implementation is fraught with trial and tribulation, but the end result can pay great dividends in efficiency and bottom-line realizations.