Despite the move to email and attachments by law firms and their clients, there's still a proliferation of paper that needs to be incorporated into digital content management and storage systems. "The legal industry is still generating tons of paper," says David Wilner, president of Rhino Imaging LLC. Therefore, there are an increasing number of companies that offer digital archiving services, which scan documentation into digital formats for law firms and their clients.
Rhino started business in an 800-square foot office in October of 2003. By early 2005, the company had moved into a 4,000-square foot space, with a business volume growing at about the same rate as the office size. Wilner sees an increasing numbers of competitors as well. Many law firms are going to third parties for these services because they don't have the personnel in house to handle the scanning.
But digital imaging for the legal profession is more than an exercise in making electronic copies, Wilner says. Some documents or parts of documents are confidential. Others are limited to senior partners or other specific people. So the document scanning and archiving system must allow companies to limit views of econtent, the legal term for which is redaction. By tagging econtent for court, not in court, confidential, etc., Rhino Imaging helps its clients have access to the content they need while protecting sensitive information. Date stamps are included with the scans to facilitate searches. Rhino Imaging customers can also highlight different information and attach electronic "sticky notes" to scanned documents. The company also offers electronic hosting. Customers can go online to search the scanned images, which are secured by a PIN and password.
Another form of paper that still fits into many legal workflows is faxes. Clients still fax over numerous documents, which can mean delays in getting the paper to the right person, misplaced documents, and other inefficiencies, according to Joseph Visci, owner and president of Visci & Associates, a law firm that includes a real estate and tax practice. Many of the company's clients have faxes, but don't have the ability to send interest rate sheets, tax documents, and other materials via email.
"It's a very paper-intensive business; we're moving mountains of documents each day," Visci says. That mountain of documents would be impossible to scale, Visci says, if the firm didn't employ an automated system to turn faxes into edocuments. In mid-2004, the firm installed FaxCore's network fax software, which tracks, manages, and delivers faxes in as JPEG, GIF, PDF, or TIFF files via Microsoft's .NET platform. This is much simpler and less labor-intensive than scanning the faxes as they come into the office, Visci says. "It's a seamless system; everything goes straight into the computer." From there Visci can add his own notes and forward the material electronically within his office or to other locations.
Sometimes the econtent focus of litigation is content that should be sitting on someone's hard drive (or archive) and isn't—or at least doesn't appear to be. For example, one of Ballon's clients at Manatt, Phelps & Phillips, the plaintiff in a trade secret case, sought an electronic document that showed that a president of a company knew about a trade secret violation committed by one of his salespeople against Ballon's client.
While the defendant produced documents printed from a laptop, Ballon negotiated for the laptop itself. Once the judge awarded Ballon that right, he turned the device over to a computer forensics expert who was able to recover an erased email between the salesperson and company president discussing the trade secret and Ballon's client, which helped win the case. "The courts are starting to impose penalties on companies for the willful or negligent destruction of documents," Ballon says.
Therefore, a company's edocumentation policies also have to determine what to do with metadata, adds Harris. For example, turning off "document tracking" in Microsoft Word means one no longer sees the changes made in a document. But if the document is emailed as an attachment to another party who turns on document tracking, all of those changes reappear. Some of the draft information can be legally damaging.
Some of the issues pertaining to edocumentation regarding retention, management, etc., may eventually be decided by the courts. Until then, law firms and other companies will want to review their collection, retention, and retrieval practices to ensure they can locate what they need in the event of any litigation.
It's not just the content that law firms and their clients control that is becoming more digital for better management and retrieval. The courts themselves are also beginning to move into econtent.
The state of Michigan's Eastpointe's 38th District Court is one of the first to automate filing of court documents, says Paul Chan, VP of PureEdge Solutions, Inc. Citizens and attorneys use the system to file general civil complaints, answers, jury demands, and motions via the Michigan Supreme Court's eFiling Portal. Specific forms included in the first phase of the implementation for general civil cases are summons and complaint, jury demand, answer, and cover sheet (motion) court forms. Future phases of the e-forms program may include small-claims filings and landlord-tenant cases.
The PureEdge software employs open and court-specific standards of LegalXML, the legal community's standard version of XML. Chan says the LegalXML standard facilitates future integration of the digital forms with 41 different court case management systems. To date, the only incentive for law firms to file these forms electronically is to simplify the process for themselves. The state has yet to include any financial incentive for electronic filers.
The next phase is to incorporate electronic payments into the electronic filing system, says Chan, adding that several other states are looking at the software as well. Pursuit of electronic filing is often at the direction of the state CIO, according to Chan. "Some are more progressive than others."
So as the complex process of documenting, discovering, and conducting legal cases becomes increasingly digital, the storage, management, and even legal obligations surrounding that information become increasingly complex. However, many vendors are making a strong case for increased use of effective content and document management and workflows.
DOAR Litigation Consulting
iLumin Software Services, Inc.
Manatt, Phelps & Phillips
PureEdge Solutions, Inc.
Rhino Imaging LLC