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There is a new legal climate post-Enron/PricewaterhouseCoopers as far as document retention is concerned. For many of us, the question of document retention policy comes at a time when new forms of information are redefining the concept of the document itself. Document must be understood as information generally-or data. The ubiquity of digital formats means the use of paper can no longer be taken for granted. This convergence of retention policy with technology presents challenges and opportunities for legal practitioners, both in their own operations and in serving the interests of their clients. Document management is the making available of documents and information associated with them when and where required for a particular set of operations. Case management is a specialized form of document management. One important operation is the creation, or accession, of the document. Another is the destruction of the document. The timing of document destruction is the domain of the document retention policy. For the legal practitioner, document retention is the genesis of any document management program. Each business, profession, or government agency that produces documents and records in the course of its business must retain the documents for a period of time that meets its particular operational needs and legal requirements. Operational needs are specific to the organization. Accountants must keep documents on hand long enough to prepare whatever tax returns or audits are required. This can be hours, days, or months. As for legal requirements, the Sarbanes-Oxley Act of 2002, for example, requires that accountants retain documents for five years after an audit. Once a document retention policy is established, it must be consistently enforced. There is an important exception with respect to this: If documents are material to a lawsuit not yet filed but anticipated, the retention policy must be suspended to ensure the preservation of discoverable documents. DUAL HAZARDS There are two hazards associated with ignoring an established document retention policy: Any documents retained longer than the required duration can expose the owner to unnecessary risk, and the failure to observe the policy generally can invalidate the policy as a rationale for destroying documents in a particular matter. This could be perilous in litigation. The perils of wrongful destruction can include default, or an instruction to the jury that it may infer that the documents would have been harmful to the party’s case. While such an inference is rebuttable, if it is not successfully rebutted it can lead to disintegration of the party’s case. Sarbanes-Oxley goes beyond procedural sanctions. For companies whose records are subject to government audit, if the document retention policy was designed to frustrate inquiry rather than facilitate it, criminal penalties will apply. Once it has been decided how long various documents (e.g., letters to and from clients, articles of incorporation, pleadings, payroll information, etc.) will be retained, the question arises whether the retained documents must be original documents. Since the advent of the photocopy machine and graphics printers, it has been possible to remove human error from the process of copying documents. Those who were born before 1945 will remember when a “copy” of a letter, or a birth certificate, was a manual transcription by hand or typewriter. The “copy” looked different from the original, because it was the copyist’s interpretation of what was significant in the original document. Hopefully, the content was true to the original, but even the best of copyists could make errors. Therefore, at that time there was a legitimate reason for preferring an original document to a copy. With modern means of reproduction and storage, an operator would have to commit an intentional act of manipulation to produce an inaccurate copy of the original. If the photocopy is produced in good faith but is technically defective, the defect will likely be obvious and will give notice that the copy is suspect. The legal landscape has changed with the times. Federal Rule of Evidence 1,002, Requirement of Original, states: “To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required, except as otherwise provided in these rules or by Act of Congress.” This rule is countered by Federal Rule of Evidence 1,003, Admissibility of Duplicates, which states, “A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.” In addition to the Federal admissibility of copies, Virginia, Maryland, and Washington, D.C., all expressly permit the use of copies as evidence in their courts. All three permit the use of copies or reproductions made in the regular course of business-and the destruction of originals-by any process that appears to accurately reproduce the original. Such copies or reproductions are as admissible in evidence as the original itself, whether the original is in existence or not. TRIPLE THREAT There are situations in which the use or the making of copies is inappropriate. There are three issues: negotiability, validity, and statutory prohibitions. If the purpose of retention is not admissibility as evidence but preservation of the negotiability, the document must be presented in the original to be ultimately paid. U.S. currency, bearer bonds, promissory notes and the like are in this category. Wills should be retained in the original, because a presumption exists that if the original cannot be found, the original was intentionally destroyed by the testator. Copies may be used to prove content, but if the question of destruction is not satisfied, the copies are not admissible to probate. Copyright and other statutes restrict the copying of other documents. Under 18 U.S.C. §1426(h), it is a criminal offense to reproduce certificates of naturalization issued by the United States. Reproduction of U.S. currency and other obligations under plates, stones, or analog, digital, or electronic images for counterfeiting obligations or securities is a criminal offense, 18 U.S.C. §474(a). MORE DOCUMENT TYPES The digital age has not changed the basic principles of document retention, but it has created a myriad of additional document types. At the same time, it has created the means of efficiently and economically managing enormous quantities of data in diverse forms. In fact, digital storage has made it possible, even practical, to store everything, forever. There is no simpler document retention policy than this. However, this is not necessarily the best policy. What can be stored forever can be discovered forever-in pursuit of information that may lead to admissible evidence. Conversations that once took place at the water cooler or over the telephone now occur by e-mail. People express themselves in e-mail with surprising candor, and e-mail is virtually immortal in cyberspace. This makes it a rich source of information in litigation. The Federal Rules of Civil Procedure expressly permit the discovery of digital data. Digital data includes e-mail, metadata (e-mail background information), digital images, browser cookies, and incompletely deleted files, to name a few. Every desktop computer, file server, laptop, Palm Pilot, cell phone, memory stick-virtually every device with an electronic memory-potentially contains discoverable data. Not only is the digital data discoverable, but also the response must be in the form in which the data was kept “in the normal course of business.” Strictly speaking, e-mail, created and stored digitally, must be provided in digital form as a computer file, not as printouts. The reason for this is that invisible but pertinent background data (metadata) associated with digital files can itself be probative. Metadata tells the history of creation, alteration, and routing of the data file (i.e., e-mail). Accordingly, whether or not the organization employs document imaging, its document retention policy must include digital data, in digital form. What is now required is a data retention policy. How long are e-mail messages (and attachments) going to be retained? When are browser cookies going to be accepted, and how long will they stay on company computers? These and similar questions will have to be answered in the retention policy. The execution of the policy can be automated, with fail-safe controls, but there is no avoiding the initial policy decisions on which the system will depend. Systemwide backup tapes pose a special problem in data retention policy. The purpose of the tapes is to provide a snapshot of the system and all the data on it. In the event of a catastrophe, the entire IT infrastructure of the firm can be restored within a few hours or minutes. Because of the comprehensive nature of the data they contain, backup tapes have become a frequent object of discovery. Being expensive, backup tapes are not recorded and stored away. Once full, they are overwritten with new data starting at the beginning of the tape. Backup tapes can contain data already discarded in the normal course of business. For example, if police emergency calls are recorded and maintained for 30 days before being deleted, systemwide backup tapes may preserve the (digital) recordings of the calls for a longer period. In normal circumstances, were there to be a systemwide failure of the computer network, the backup tapes would restore the network and its data. To the extent that some of the backed-up data had been deleted in the primary system in accordance with a data retention protocol, this data would again be deleted when the system is restored. Obviously, even if primary system data has been deleted in the normal course of business, backup tapes might still contain the data. If the owner of the information allows the backup tapes to be overwritten, that data is irrevocably lost. For this reason the owner now has a duty to discontinue overwriting when he has reason to believe that data on the tape could be subject to discovery. A further thorny issue is deleted files. When a computer user deletes a file, the space occupied by the file on the storage medium (e.g., hard drive) is not erased, but is made available for overwriting when needed. Overwriting may occur the next minute, or next year, depending on the size and utilization of the drive. Only when the file is overwritten is it actually gone (and no longer available to be discovered). By virtue of this delay between deleting and overwriting, files considered long since erased might still exist on the drive. There are after-market software programs available to wipe clean the storage medium as soon as the delete command is executed. For the sake of certainty as to which files exist and which do not, it would be advisable to use wipe programs when deleting files. Digital data includes information that was digital at the time it was created (e.g., e-mail) and data that resulted from the conversion of paper documents through scanning. Digital data can be formatted by application software (such as word processors) for viewing on a computer screen and printed out on a graphics printer, which includes most letter quality printers in use today. The files for digitally imaged documents are primarily graphics files containing a photographic likeness composed of small dots, the placement of which is stored in binary addresses in the computer file. The images contain all the visible data on the original document, including signatures, notes, corrections, etc. As with photocopies, the images may or may not show non-ink features such as creases or folds, or embossed notary seals. Because the images are converted to binary form, replication of the digital image is done by copying the computer file, in the same manner as a word processing file is copied. No further optical process is involved. This means that there is no generational difference between copies. The image contained in the tenth-generation copy of the file will be of the same quality as the image in the original file. THE DETAIL’S IN THE DOTS The detail shown by a digital image is determined by the fineness of the dots that represent it. The greater the dot-density (in dots per inch, or DPI), the sharper or clearer the image is. The device used to create the digital file is a scanner. Scanners for photographic use can scan at thousands of dots per inch; such scanners can capture the whisker on a rabbit’s nose. To the dismay of the Treasury Department, they can also capture almost invisible etching lines on a dollar bill. Scanners for document imaging do not operate at such high DPI, for several reasons. First, there are no features in text documents as fine as a rabbit’s whisker. Secondly, the standard printers used for office work have themselves only a DPI of 300 or so; such fine detail would not be reproduced in a printout. Thirdly, the memory requirements for a graphics file rise exponentially as the DPI increases; files created at more than 300 DPI can be very unhandy to store or move over a network. Last and most important, the speed at which scanners operate is closely dependent on DPI. To scan a single image in a photographic scanner could take several minutes; a document scanner can typically scan 20 or more pages per minute at 300 DPI. Documents scanned at 200 DPI are clear and readable to the human eye, and this is a perfectly acceptable density for archiving documents. In most cases, however, one would opt for 300 DPI, because this allows for reliable optical character recognition. OCR allows the system to actually identify the letters and words in a scanned document. This opens up a host of other options that are of benefit in digital document management. For the owner of information, the worst hazard inherent in document imaging is the possibility of piecemeal (i.e., one or two pages) or wholesale (i.e., 100,000 pages) loss of data. As for preventing wholesale loss of data, a folder or directory of digitized documents can be replicated by the owner at little cost and stored simultaneously at several locations on different storage media. The technology for ensuring the survival of computer data is well-developed, and the risk of this kind of loss is manageable. Piecemeal loss arises during the imaging process itself, when the auto-feed mechanism of the scanner picks up more than one sheet at a time. Modern scanners are equipped with infrared and ultrasound devices for detecting this error in real-time. In addition, commercial scanners are available with imprinters that print a date-time stamp on the original after it is scanned. In this way, the owner can positively verify that a document has been scanned. The final defense against page loss is the quality inspection regime of the scanning vendor. Prior to considering document imaging, the firm should have a data retention policy in place, to lay out ground rules. These ground rules can be both a written policy and the protocols that are written into the document management system. GOOD NEWS, BAD NEWS The next consideration in digital document management is the firm’s 30-year, 400-box collection of old files. The bad news is that converting the firm’s million-page archive into digital images could cost a lot of money. The good news is that with a data retention policy, it is entirely possible that 90 percent of the archive need not be converted at all. In line with the retention policy, outdated documents are eliminated immediately. Next, public documents and copies of reference cases are discarded from the archive in the process of “streamlining.” The really good news is that archive imaging is a one-time expense, and thereafter storage and retrieval costs are virtually nil. Archive imaging and the imaging of daily document intake (i.e., this-day-forward imaging) have different hardware requirements. Archive imaging, to be performed economically, requires specialized scanners with speeds of thousands of sheets per hour. Such scanners are not necessarily cost-effective for normal document intake; a firm may scan only a few hundred sheets on an average day. Digital archiving is a task that is appropriate to contract out. Digitizing-or updating-of working files is best done in-house. Assuming that digital document management is to be employed at all, there cannot be any significant delay between creation or receipt of a given document and the time it is entered into the system. Imaging in-house puts the owner in control of the process. After this-day-forward scanning has started, it will never again be necessary to scan files for archiving. The document management system will archive the closed files and set retention flags. For the user, the major difference between archived files and open files is the priority of retrieval. Open files will be maintained on memory where access time is measured in milliseconds; archived files may be on slower media, with access times of seconds to minutes. When it comes to responding to documentary requests, litigators are early converts to digital imaging, Instead of sending batches of documents back and forth to copying vendors to be copied for the Nth time, and keeping tabs on generational differences of the copies, they can quickly locate and lift the already-scanned documents from the system and copy them onto storage media for delivery to parties, any number of times. Some readers will see digital document management and retention as a euphemism for the “paperless office.” Yes, it is, but not necessarily right now. While the first “paperless trial” may have taken place as early as 1996 ( United States v. Irving D. Labovitz, D. Mass.), it would be prudent for the practitioner to remain “paper enabled” until the digital system has proven itself under fire. There is no practical reason why digital and paper file management systems cannot coexist during a long transition period. Einar Rowan is vice president of Fairfax, Va.’s Rokom Ltd., a document imaging and knowledge management company serving the D.C. metropolitan area.

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