When it comes to the topic of document retention and security in the legal industry, it is important to remember that there are legal requirements related to protecting evidence and saving documents until after a particular case is over. Additionally, in many cases, the organizations may need the documents for multiple cases, which can make legal document management policies even more challenging.
While many organizations have document policies in place – addressing everything from permissions to retention to destruction – they may not have an answer for what to do if legal action is required.
All of this leads to a couple of important questions. If a client knows a lawsuit or other legal matter is imminent, what are they required to do to make sure critical documents are always available? Then, assuming that the courts require an effective document retention policy, what steps can these organizations do to protect sensitive information and ensure compliance?
Document management requirements
Let’s answer the initial question first. The common law and amendments to the Federal Rules of Civil Procedure suggest that once a client has a reasonable belief that litigation may arise from a dispute, that client/organization faces a duty to preserve all documents related to that dispute. Notably, this includes paper and electronic versions of documents and evidence. It doesn’t matter if the lawsuit has actually been filed, or a complaint served. Only a reasonable belief that litigation may occur triggers this duty to protect information. But this means it’s up to the courts to determine what constitutes a “reasonable belief.”
An emerging line of cases suggests that the duty to preserve information arises if the party knows, or should have known, about the possibility of litigation. Preservation may require placing a matter and all documents related to it on litigation hold. This term serves as a red flag to the company and its employees, warning them not to destroy documents in their present forms. When a litigation hold is filed, or when there is a reasonable expectation of litigation, the individual or company must cease all activity that will result in the destruction or loss of records.
Then, when litigation actually starts, counsel must issue a litigation hold letter to the client. Court opinions have held that lawyers have the additional duty to follow up with the client to ensure that the litigation hold procedures are implemented and followed. This requirement applies to both inside and outside counsel.
The technology advantage
Clearly, clients and their companies – and even legal representation – are required to safeguard information related to lawsuits and other legal matters. Yet the question remains: What can these organizations do to fully protect these documents and make sure they’re complying with court mandates?
One answer is technology, especially solutions that can automate manual processes, transform paper documents into electronic versions, integrate them into existing legal document workflows and store them securely.
All of this sounds challenging, especially when you consider the fact that law firms typically handle a staggering volume of documents. Yet when it comes to preserving documents and reacting to litigation hold, each document must be processed accurately and securely.
With document management solutions for legal firms – consisting of solutions for PDF, document capture and workflow, mobile and more – any organization can streamline critical processes, improve compliance and increase overall security. For example, Nuance’s leading document capture and workflow solutions transform manual, disconnected processes into dynamic, streamlined and automated workflows. Our scanning solutions automate paper-to-digital workflows, helping law firms and clients scan, capture, process and route documents to back-end systems from any MFP or even a mobile device.
These solutions enable law firms to securely capture, organize, publish and distribute information – no matter whether it’s paper or electronic files – to ensure data loss protection and confidentiality, track usage and provide security controls and audit trails that protect sensitive data. And in turn, this helps clients and their organizations comply with litigation hold requirements and protect sensitive documents and evidence.