Computers are the filing cabinets of the electronic age. What is in yours? Just as in the management of paper records, we should be concerned about the management of our electronic records. Studies have shown that 20% to 30% of information maintained on computers is never printed. Therefore, if you manage only paper output, you are neglecting 20% to 30% of the records.

Violation of client confidentiality is one risk to be considered in electronic records management. Commingling of client records with your business records occurs frequently and often without members of the firm realizing that it has happened. These records should be properly segregated. In the event a firm’s records are opened for discovery and a client’s records are opened in the process, a potential violation of the attorney-client privilege exists.

Whereas paper records are readily available and you "see" what you actually have; the review of electronic records, requires the proper hardware, software, password(s) and the knowledge to use the proper applications. Particular attention should be given to data imported from older systems or applications. The potential problem here is that the newer system may not allow the user to see all the elements on those files. For example, a business imports data from an older system to their new system and, due to a software or usage issue, doesn’t realize they were only seeing the "surface level" records. In a discovery situation, opposing counsel could review the same data using original hardware and software and find damaging evidence the firm did not know was there.

Along the same lines, just because data has been "deleted," it does not mean it is unrecoverable. Deleted data can be recovered from a hard disk, unless the sector(s) where the data was stored has been at least "written over" on the hard disk. Current methods of electronic data destruction should be closely examined. You could be handing out copies of client information on discarded computers without realizing it. Information services experts should be consulted if doubts exist as to a firm’s method of dealing with data destruction.

The storage of electronic records in the form of back up tapes, zip disks, etc. should also be carefully maintained. Temperature fluctuation can seriously damage electronic tapes and disks to a point that the data can no longer be recovered. In the event of a hardware and/or software failure, it would be necessary to restore the system from a recent back up tape or disk. Damaged back ups can mean the loss of days, months or even years of work product and business records for your firm.

The same type of damage can happen from simple mishandling of electronic data. For example, records from an opposing client are sent to your firm on a computer. The computer is placed in a common area and over the next few weeks attorneys and/or staff members begin using the computer to play games. The electronic data contained on the computer is corrupted. Law firms have a fiduciary responsibility to handle client data, yet it is easy to ruin a case by not handling the data properly.

While the practice of law is still very much a paper world, we are maintaining an ever increasing amount of information on our computer systems. You know what is contained in your filing cabinets. Isn’t it time to evaluate the electronic information in your office?

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