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For both litigators and in-house counsel, a law librarian can prove invaluable as a records manager. For trial attorneys, a law librarian as a records manager can support a litigator’s document needs, before and during a trial. Supporting any litigation practice thus becomes a critical task for the librarian/records manager. For in-house counsel, a law librarian acting as a records manager can create a program that will help an organization develop strategies to avoid litigation. Unfortunately, the records management function is often neglected, despite the fact that client records can constitute the lawyer’s most significant source of work product and intellectual property. In many law firms and law departments, records management is considered a clerical function, and it is only when lawyers become sufficiently frustrated at their inability to locate files and documents that the organization turns to an information-management professional for assistance. Librarians are well-suited to assume responsibility for records management. Their organization and classification skills can apply to the management of client records and the enhancement of the lawyer’s ability to access and retrieve records on demand. As more and more librarians face the task of developing records-management programs, they should recognize the specific requirements imposed by different practice areas. Litigation in particular requires the application of defined records-management processes. Many law librarians find it difficult to imagine how their skills and backgrounds qualify them to be records managers. However, both librarianship and records management use similar methodologies and practices to enhance access and retrieval of information. This becomes clear when comparing how the two disciplines manage basic information life cycle stages. � Information creation. Librarians primarily manage information created outside the firm, while records managers are focused on lawyer-created work product. However, both librarianship and records management rely on classification and descriptive bibliography to provide access to information collection. Librarians will use controlled vocabularies, such as the Library of Congress classification system, to describe their holdings, while records managers will determine standardized filing categories for the documents produced by various areas of law. Both disciplines will catalog their holdings in a defined format, designed to allow consistent and easy access to users. � Use. Circulation management is critical to both librarians and records managers, and both use similar techniques to control the location of materials, including card systems or barcoding if automated systems are in place. � Maintenance. Law librarians focus on the receipt and cataloging of additional volumes, pocket parts or issues. Records managers create and catalog additional filing components, such as pockets, folders or subfiles. In addition, both disciplines use electronic databases to manage their collections. These systems must be frequently updated to reflect changes to the collection. � Disposition of unneeded information. This is probably the most critical difference between the two disciplines. Librarianship focuses on collection building, so that the firm or corporation has a rich source of meaningful, current and scholarly research material. Although librarians weed their collections of outdated materials, their focus is on collection development and growth, so that they can meet the unpredictable research needs of the users. A book or treatise, even if not frequently accessed, can still be a valuable part of the collection. Records management is concerned with the disposition of information when it is no longer useful. The records manager understands that unused and unneeded records take up valuable and expensive office space. The records manager also understands that these records are potentially discoverable if the organization is subpoenaed to produce them. Therefore, a records management program involves assessing the organization’s record types, and determining the operational, fiscal and legal requirements for their use and retention. Once these periods for active and inactive use are defined, the organization can manage records through a life cycle that ultimately ends in destruction in the ordinary course of business. If subpoenaed, the organization can produce its records-retention policies to evidence its records-destruction practices. CUSTODIAL RESPONSIBILITIES Both law firms and corporate law departments will include a records-management function. Although they both handle the same types of records, the most critical distinction between them is the concept of records ownership. Whereas a corporation owns its records because they are created by the organization during the course of normal operations, the law firm is the custodian of records it holds on behalf of its clients. This is certainly true of any records delivered to the law firm by the corporate client for fact-finding or discovery, and may also be true of records produced by the law firm on its client’s behalf. Lawyers have specific custodial responsibility to safeguard their client’s property. The American Bar Association Rules of Professional Conduct, as well as state bar association ethics opinions, provide different interpretations of the issue of whether client matter file is client property. Some states assert that the client owns the entire file, while other states assert that a firm owns its work product (including notes, billing records and internal memoranda), and that the client owns the end product (filed or executed documents). To define its position on records ownership, each law firm must research the ethics opinions and case law in the jurisdictions in which it practices. The firm’s policy will in turn determine how it manages these records during their active life, as well as its obligations either to return files to the client after a matter closes or to seek client authorization to destroy them. Organizations involved in litigation must usually produce documents to the other side that relate to the facts in dispute. The request for documents received by opposing counsel will be broad in its language, and will routinely require production of documents in all media, including electronic, paper or film records. E-mail will most likely be requested, as will other document types, such as spreadsheets, presentations, images and databases. The information contained in these records will either support the organization’s position or undermine it. If an organization’s records are managed by an enterprise-wide records retention policy that determines periods of activity, inactivity and destruction for records in all media (both hard copy and electronic), then potentially damaging records could be destroyed during the ordinary course of business. Consequently, they will not be available for production if litigation occurs. (It should be noted, however, that records should never be destroyed once the organization becomes aware that litigation is possible. In that case, the retention periods applying to those records are suspended, making the records available if requested). The application of consistent records management policies and procedures can thus protect an organization from additional or excessive exposure when a dispute arises. Because the primary objective of the corporate general counsel is to avoid litigation or to minimize its effects, the librarian/records manager in the corporate law department can play a critical role in the organization’s litigation avoidance strategy. By the time the law firm receives the client’s records, litigation is already underway, and discovery may have commenced. However, the law firm’s records management policies can protect the firm and the client in case further dispute arises after the matter is settled. Although many of the documents produced by the law firm on behalf of its clients are protected by attorney/client privilege, this is not true of the entire file, and may not be true of client-generated documents produced for fact-finding and discovery. As indicated above, it is important that each firm define which portions of the file the client owns. It is then recommended that all client-owned records be returned to the client once a dispute is settled, so that they can once again become part of the client’s internal records-retention program. This ensures that the documents remaining in the firm’s possession are privileged, and also places the responsibility for records destruction with the client, shielding the firm from potential exposure if the records become part of a later discovery request. WHEN LITIGATION BEGINS Once litigation commences, records management becomes critical to the lawyer’s ability to access and retrieve important documents during all phases of the case. As mentioned above, the consistent application of classification and naming conventions to records collections is an important element of the records management program. However, there are certain records management practices that are critical to the litigation practice with which the librarian/records manager should be familiar. Although legal assistants often manage these tasks in law firms and law departments, many other organizations assign these responsibilities to the records manager. When maintenance of the pleading file becomes a records management responsibility, a process exists to ensure that pleadings are routed to the records department for indexing and filing. It is critical that the records department process the pleadings as quickly as possible since the litigation team will require frequent and quick access to the file. The pleadings index is a contents listing of all court documents filed in the case, by all parties. In a complex lawsuit, these documents can number in the hundreds. The pleadings index lists each document in the order in which it was received, describing it by title and by the party that filed it. Each pleading document is assigned a reference number, which corresponds to a physical tab affixed to the document. Once assembled, the pleadings file consists of multiple volumes of tabbed documents, with the pleadings index providing access to the collection. (Interestingly, although the pleadings file might be stored electronically for easy access by lawyers, most law firms still create hardcopy pleadings files.) Client and adverse party documents can number in the thousands in large litigation matters. When an organization receives a request for production it is crucial that it be able to find the needed documents without delay. If the organization has a records-management program that has already identified existing records, it becomes easy to identify the records that fall within the scope of the discovery request so that they can be reviewed by the organization’s counsel and then produced. In addition, records-management principles can help the law firm manage large collections of discovery documents after production. Litigation support systems capture these records as images, and then integrate them with full text and classification software that allows lawyers fast and portable access to large document collections. Consistent and descriptive indexing terms must be applied to the documents. The librarian/records manager is uniquely qualified to establish the controlled vocabulary terms that can enhance use of discovery materials. REAL-TIME TRIAL ASSISTANCE Applying records management standards to the litigation file will ensure that a lawyer can immediately find any record needed during trial. Even if the task of trial preparation of documents falls to a legal assistant, the librarian/records manager can provide essential assistance through the previous organization, classification and indexing of these materials. Records management is a critical tool in the legal environment that can shield the organization from potential liability and also provide access to records when needed for trial. The law librarian is uniquely qualified to assume responsibility for this function within the law firm or law department. Although each area of the law has specific records management concerns, the librarian/records manager can add significant value to the support of litigators and the litigation process. Beth Chiaiese is the director of education and outreach at New York’s LegalKEY Technologies Inc. She is the co-author of the upcoming book “Records Management in the Legal Environment,” to be published by ARMA International in 2002.

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