PAPERLESS IS POSSIBLE: A MODEL FOR IMPLEMENTING THE PAPERLESS LAW FIRM

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1 PAPERLESS IS POSSIBLE: A MODEL FOR IMPLEMENTING THE PAPERLESS LAW FIRM The prospect of the paperless office has been touted for years as the inevitable endpoint of technology advancement. The theory says that as software and equipment developed, and offices became increasingly reliant on digital information, the volume of paper used and consumed in the office would drastically decrease and eventually, disappear. Instead, the opposite seemed to happen. Faster, more sophisticated multi-function copiers made printing and duplicating easier. The quick and easy dissemination of electronic documents made a given document accessible to many more people who could print as many copies as they liked. The result was that global consumption of office paper actually doubled in the last two decades of the 20th century. 1 But in recent years, this trend has at last begun to turn. As technology continues to develop and become ever more convenient, affordable and portable, and concern over environmental sustainability continues to rise, offices in a variety of industries are beginning to see the benefits of drastically reducing, if not eliminating, the presence and consumption of paper. Law firms are one of the key groups who can benefit from a transition toward a paperless office. Due to the absence of any industry-wide regulation governing the retention of records and other information processed by law firms, many legal offices find themselves with years worth of hard copy records that take up expensive office space or sit in a warehouse and contribute to growing storage costs. Worse yet, continued growth and lack of a coordinated control system has led to an ever-increasing volume of paper. At every step of the way, there are increased costs and risk management issues. Paperless is possible As daunting as it may seem, transitioning to a paperless or a very nearly paperless office is absolutely possible. The challenges are significant, but so are the rewards. In this case, the rewards come in two easy to identify main forms: cost savings and risk management. The challenges come in four areas: 1 Technology. The challenge in transitioning to a less paper-intensive office doesn t come from a lack of technology. Technology exists right now to eliminate every last piece of paper in your office, regardless of its size. The challenge here lies in identifying, investing in, implementing and maintaining the right technology for your office. These challenges are explored in Appendix A. 2 Legality. Despite what we might believe, there is no legal barrier to a paperless office. The Electronic Signatures in Global and National Commerce Act of 2000 set the national precedent for the legitimacy of electronic records. Intrastate law will, of course, vary by jurisdiction, but the trend is toward the legality of electronic records without retention of their paper counterparts. In addition, more and more court systems, including U.S. federal circuit courts, now allow electronic filing, although this varies from one jurisdiction to another. If a court requires paper copies, obviously a firm must comply but this can be just a necessary exception to an otherwise paperless operating model. 1 Not Dead, Just Resting, The Economist, Page 1 of 6

2 3 Internal resistance. Perhaps the most likely and formidable challenge a firm will face when considering going paperless will come from attorneys and staff who have been working with paper documents for years who don t want to change. This is the way I ve always done it can be a significant barrier to implementing any kind of change in an organization, particularly a change as ambitious as this. The best approach here for winning over doubters is to convey as clearly and extensively as possible how the change will make attorneys lives easier and their work more efficient and effective. The best approach may be to identify a pilot group within the firm with which to start implementing these changes. Since younger attorneys tend to be more familiar and comfortable with technology, and not already set in their ways, they could be the best pilot group. If you begin with this group and expand to all new hires, you will eventually be able to expand the pilot to other attorneys as they see the success of the program. (Handled this way, the transition will take years to phase in, but it will eventually be complete.) 4 External resistance. A firm that wants to begin a paperless transition should communicate this to new clients in an engagement letter and make it clear that all correspondence between them and the client in the future will be electronic. If a client absolutely demands paper correspondence, billing or other documentation, obviously the firm should comply. However, again these instances can be necessary exceptions in an otherwise paperless operating model. Another source of external resistance to electronic documentation may come from other law firms, such as opposing counsel. As mentioned above, the ESIGN Act of 2000 declares electronic records to be every bit as legitimate as their hard-copy counterparts. As with the case of electronic filing, however, it may depend on the given jurisdiction whether the firm is able to exclusively produce electronic discovery documents. If paper is required in this instance, however, the firm can take solace in the fact that it is paper that is on its way out the door. It is being produced but not retained. But what if it all gets deleted?! Perhaps the most common and understandable fear when it comes to everything going electronic is that of loss. When we cannot hold a physical document in our hands, we fear that at any moment the dreaded computer glitch could catastrophically delete it all. The simplest answer to this argument is, What if the building burns down? Or floods or is robbed, or faces any other disaster that could befall physical property? The point is that there is ultimately no fail safe medium on which to store information. That said, electronic storage offers many more efficiencies in the way of redundancy, remote access and regular backup. An effective transition to a paperless office requires a thorough assessment, implementation and maintenance of a risk management and disaster recovery program. The 2014 ILTA (International Legal Technology Association) survey revealed that 56 percent of respondents had a disaster recovery or business continuity plan in place, up from 52 percent in 2013, and 48 percent in Similar upward trends were found in automated replication of critical data, redundant or backup Internet connection, and disk-to-disk backup technology for data recovery. Majorities ranging from 76 to 81 percent of respondents reported using each of these technologies. 2 Stop paper before it starts A common misconception equates going paperless with simply running every piece of paper in sight through a scanner. Because paper is the incumbent form that we are trying to eliminate, it seems to follow that the solution primarily involves converting paper to electronic form. In reality, electronic formats are actually the native form that most information takes prior to becoming paper. With the exception of hand-written notes, an overwhelming majority of paper documents are born electronically. The trick, then, is to prevent information from making it onto paper in the first place. Scanning should be our last resort. By scanning all incoming mail, for example, we have not reduced the presence of any paper in the office. The paper is still there but it is now just being circulated electronically. 2 ILTA s 2014 Technology Survey Results, ILTA, October 2014, Page 2 of 6

3 If, however, we electronically Bates label a group of 3,000 pages of electronic documents and produce them as PDFs or TIFFs on a disc, we have actually prevented these documents from ever taking paper form. The old, paper-based tactic in this scenario would have been to print the documents, place physical labels on each page one at a time, and copy the labeled documents, possibly several times. By electronically processing and producing, we prevent 6,000 (or even 9,000 or 12,000) pages from being generated, as well as save four to five hours of labor. The primary goal at all times should be to first keep electronic information electronic, and second (less preferably), to convert paper information to electronic. In addition to reducing the consumption and presence of paper, keeping information electronic provides greater image quality as opposed to a scan. The image quality of a document that was created and has remained electronic is, for all practical purposes, perfect. Documents created from a scanned hard copy will inevitably suffer some level of image degradation, regardless of the hardware or software involved because scanning is like taking a picture of a document. No matter how well it is done, it is not the real thing. Finally, making the text of scanned documents searchable requires a time-consuming and imperfect process of OCR (optical character recognition), whereas the text of pure electronic documents is naturally searchable with no extra steps. A firm has the least control over paper when information is in the incoming stage of information flow (see Stages of Information Flow in Appendix A). Although a firm can choose not to circulate, produce or retain paper copies of electronic information, it cannot expect to prevent external parties from sending them. Certain steps can be taken to reduce this paper load as much as possible, such as having the accounting department arrange for vendors to submit electronic invoices, or by informing clients in the engagement letter that the firm prefers to communicate electronically. But there will inevitably be incoming mail, transferred hard-copy client records and received discovery documents that will require an imaging solution to electronically capture the information. Once this capture has taken place, hard copy records can be returned to the client; discovery documents can be returned to the sender, and incoming correspondence, most likely with some exceptions, can be destroyed on a rolling basis. How it can be done Analysis of the transition toward a paperless office is best performed through a matrix approach (See Appendix A). The vertical axis of the matrix represents the different departments of the firm, while the horizontal axis displays the stages of information flow. Stages of information flow Incoming (documents received by the firm from external sources) Existing Legacy Creation Circulation Outgoing (documents sent by the firm to external parties) Retention This is not to be confused with the life cycle of a document or record that may be discussed in Records Management. Rather, the stages of information flow are meant to describe the directional flows of paper or data as they interact with the firm. For example, the firm has different levels of control over how much paper it receives from external sources (incoming) versus how much paper it produces to outside parties (outgoing). Page 3 of 6

4 Departments of the firm Mail room/office services Litigation Support Records Management Accounting Human Resources/Administrative Departments Since every law firm is organized differently, this is not meant to be an exhaustive list of potential departments. Rather, the departments here are intended to illustrate what type of documents each one might receive, retain and produce. For example, the mail room and the records department are both support services of the firm, but the mail room tends to receive and route mail, faxes and courier deliveries, whereas the records department tends to receive boxes of files such as from an incoming client or lateral attorney transfer. Software basics Before exploring the different areas of the firm and the documents they receive and produce, it helps to be familiar with a few different software products that will be essential to any paperless office. PDF creation and modification tool The standard and most familiar format for electronic documents is usually the PDF (portable document format). Making all of the paper that flows through the office electronic requires software that can both convert documents to PDF and modify PDFs once they have been created. A program such as Adobe Acrobat can create PDFs by either interfacing with a scanner to convert from paper, or electronically converting directly from a native file such as a Microsoft Word document. In addition, once the PDF has been created, the PDF software suite can modify it in a number of ways. These include but are not limited to: Redaction of content Creation of searchable text Inserting or removing pages Electronic commenting and markup Electronic signatures Security settings that can be applied prior to sending documents or correspondence to external parties attorneys and staff will likely need extensive training in the use of PDF software. The transition to electronic creation and modification of documents is about more than just learning a program. It is a paradigm shift from the world of sorting, shuffling and scribbling on paper, to interacting with all documents on a computer screen. As many people have been working primarily with paper for years or even decades, this paradigm shift will be met not only with technical challenges, but also with behavioral ones. Page 4 of 6

5 Document management system With thousands of electronic documents being created, accessed and edited by multiple users throughout the firm, a central control system is necessary. With no central control, electronic documents can be ed to multiple users and multiple copies can be created and saved in any number of places. A document management system is a repository where the official electronic copy of the document is located so that it can always be found and its integrity can be maintained. A document management system offers numerous possibilities, which include but are not limited to: Preservation of official copy (only one user may edit the document at a time) A document can be saved as a new version, so that the original and subsequent versions are retained Constant and immediate access to the document for whomever needs it Simple and efficient restriction of access to the document for users behind an ethical wall Simple and efficient protection of documents in the event of a legal hold Simple and efficient collection of documents for ediscovery Litigation support review tool Discovery and litigation support are often the most document-intensive area of information flow for a firm that practices civil litigation. The stacks of boxes that line the halls of the litigation department can be significantly reduced or eliminated, but only with a software suite designed for litigation support. A litigation support review tool, such as Concordance or Ringtail, makes possible: Electronic review of discovery documents, whether received or to be produced Electronic redaction Electronic coding of documents (i.e. tagging documents as responsive or with a keyword for grouping) Electronic bates numbering and endorsing (instead of physically labeling each page and copying) Electronic document production (burning images to disc instead of printing thousands of pages) Electronic review in native format or as image About DTI DTI is a leading legal process outsourcing (LPO) company serving law firms and corporations around the globe. DTI helps its clients accelerate the changes they must make to remain competitive. DTI is a preeminent leader in the management of information and processes. The company manages risks and minimizes costs associated with complex litigation and compliance functions. The extensive experience in ediscovery, managed services, and litigation support is unmatched in the industry. To learn more about DTI s global footprint, flexibility, capacity and world-class project management, visit Page 5 of 6

6 Appendix A. a DTI white paper Page 6 of 6 Visit DTIglobal.com to learn more.

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