Legal Technology Journal

Law firms must get their own houses in order before advising clients regarding compliance, archiving and electronic disclosure.

Despite e-mail being the main cog in the wheel of business, approximately half of UK law firms still print all e-mails before filing. Paper has been the medium in legal matters for centuries and giving it up to store important information electronically has not been easy. Storage, retrieval and regulatory issues should persuade firms to investigate technology that allows easy search and retrieval of electronic content.

The Law Society published its revised E-mail Guidelines for Solicitors in November 2005. The guidelines state explicitly for the first time that firms need not print e-mails if, instead, their e-mail archives are held in a suitably managed electronic storage system.

Additionally, Rule 13 of the the Solicitors’ Practice Rules requires that principals ensure their practice is supervised and managed so as to comply with the various Acts and Regulations governing solicitors. These regulations require structured electronic retention of information, forcing firms’ clients to develop and vigilantly enforce information retention policies for e-mail.

Recent updates to the Civil Procedure Rules have put the onus on law firms and the fee-earners of those firms to advise clients on best practice for disclosing electronic information, and that information needs to be part of a corporate retention procedure. If the firms themselves don’t practice what they preach, they can’t very well act as an authority – and shouldn’t be surprised when their clients struggle to locate records required for disclosure in a legal matter.

Hard copies, even those stored in a records management system, or data stored on back-up tapes, take significantly longer (and cost significantly more) to search and retrieve than an electronically archived version. Saving a paper copy of the original provides inadequate back-up or contingency in the case of a natural disaster, and does not preserve all of the metadata associated with the e-mail – such as who the original author was, whether it has been modified and more.

It is time for law firms to investigate more efficient approaches to electronic document retention, namely content archiving. It is this technology that provides the necessary platform capable of responding to an increasing number of requests for disclosure of electronic content.

So how do law firms develop a solution that’s right for them?

Mills & Reeve – a UK law firm practising what it preaches

Mills & Reeve is a top 50 national law firm with 79 partners and a total staff of over 700, operating from offices in Birmingham, Cambridge, London and Norwich.

Graeme Low, head of information systems at the firm, states: ‘The business drivers for implementing content archiving technology were three-fold: we needed a more effective means of supporting data retention and compliance obligations; we needed support for our internal knowledge management initiatives; and we needed to reduce risks associated with the amount of our data that is captured and held in e-mails.’

Mills & Reeve expect ZANTAZ EAS to deliver a reduction in mailbox storage requirements of between 40% and 50%, reducing the risks to operational efficiency and compliance presented by the ever-increasing size of its e-mail information stores. Additionally, it can expect to see benefits regarding:

• compliance with the Law Society’s rules and guidelines on electronic data and e-mail retention, which state that firms should take a pragmatic and risk-based approach to records of e-mails;

• increased efficiencies, as a centrally managed, comprehensive document and data store reduces the time and costs associated with electronic data handling and disclosure; and

• improved service levels, due to a consistent approach to disclosure requests and productions, and a stronger focus on case strategy as resources previously required for electronic document collection and processing are freed up.

The archiving system allows the firm to apply its e-mail policy to offload messages from servers automatically, based on any combination of parameters such as age, size, status, sender and location. These messages are then moved into a scalable, searchable archive. The entire archive process is essentially transparent to secure users who can still access and work with their e-mail through shortcuts or ‘stubs’ left in their inbox.

Removing the e-mails to the archive reduces message storage on the Exchange server and reduces the likelihood of the server going down. Ideally, space is also saved in the archive server through compression of messages and attachments, and through ‘single instance storage’, in which one copy of each message is saved irrespective of how many users have access to it. Best in class content archiving solutions go one step further with a feature called ‘attachment splitting’, saving only a single instance of each attachment regardless of the number of different messages that may have contained it.

Cost savings generated by content archiving can be readily quantified. E-mail archiving reduces the costs of storage, back-ups and administration. All messages have a single sender, but many have multiple recipients – typically, a message will be stored in four mailboxes. Similarly, an attachment found in a given message has a one in three chance of being attached to another message.

The Law Society further advocates the importance of a proactive e-mail policy to help ensure the proper management and supervision of data, including compliance with rules of professional conduct and statutory requirements. In its recently revised guidelines, the Society acknowledges the need to retain – in electronic format – e-mail records that are under statutory retention periods or deemed ‘significant and substantive’.

Client-counsel technology relationships – a best practice approach

Once content archiving technology is in place, law firms and their clients can be happy that they are in the most prepared state for disclosure requests regarding electronic content. The question that remains to be answered is: once you have captured the information – what do you do with it?

A key part of the technology puzzle is the establishing of relationships between an organisation’s technology solutions that deal with electronic information (ie e-mail and file archiving technology to support litigation readiness) and the litigation support technology that is now available to law firms. It is imperative that these systems work together effectively or else electronic disclosure becomes incredibly time-consuming and, as a result, costly for a law firm’s client.

Technology is available to help law firms and their clients achieve speedy disclosure responses. The various systems offer the ability to search huge volumes of native electronic and paper documents so that analysing and reviewing potential evidence is efficient and effective. This kind of technology enables law firms to maximise efficiencies by providing a flexible work environment that eases case preparation and management.

These days, the barriers faced by law firms in embracing litigation support technology have been removed by the development of innovative on-demand and on-site options. This technology can easily scale to tens of millions of pages and thousands of cases, enabling hundreds of users to quickly cull large volumes of native electronic and paper documents. Documents can easily be reviewed in their native file format, reducing the time, cost and complexity of electronic disclosure. Additionally, technology exists to build in workflows and customisable reports so that disclosure costs and resources can be effectively managed.

In conclusion, content archiving has evolved to become a necessary tool for all businesses in their bid to control e-mail and electronic documents. For law firms, which traditionally have relied so heavily on paper, the operational and compliance benefits of switching to an IT-based storage, search and retrieval solution are substantial and immediate.

The increase in litigation currently being experienced on both sides of the Atlantic is becoming increasingly concerned with e-mail and electronic disclosure elements (as most communication is conducted this way). Almost two-thirds of UK corporations faced court actions in 2004 and 2005, and with up to 50% of UK companies expecting to face increased litigation activity this year,2 it’s important that law firms embrace the technology that can dramatically streamline the litigation cycle. The first critical step for law firms and their clients is getting the content archiving part of the puzzle right. 

Brian Bennett is a legal consultant at ZANTAZ.

Notes

1. Radicati Group 2006.