Julie, and all that have responded to this request, I want to say thank
you.  While I do not currently have this issue, it has been presented to me
before.  Your responses are great and will be ones that I retain for future
issues.  For a long time, I have not checked my email and have missed out on
the great information and support you all have.

When this situation was presented to me, I did approve the destruction, but
have felt the churning of my stomach every since. Thankfully, nothing became
of it.  However, I have since changed my policy and my communication to pull
back and retain these records.  My retention states:  Keep 5 years after
litigation or appeal.  This ensures that I will have the files when/if it
becomes necessary to produce it.

Again, thanks all.

Scott H.
Records Manager
State of Indiana; Family and Social Services Administration

On Tue, Jan 5, 2010 at 3:26 PM, Julie J. Colgan <[log in to unmask]>wrote:

> Thanks for sharing Larry - you furthered the conversation in some really
> good ways!
>
> Larry wrote:  it may be advisable to look into the contract for
> representation and find out if they have a longer term obligation for
> maintaining these records for a period of time on your behalf.  There may
> be
> an appeal, or subsequent litigation that would require them to access these
> records and the last thing you would want to do is have to produce them
> again in response to another data request.
>
> I highly doubt you'll find any language in the engagement letter obligating
> the firm to retain the records on your behalf, especially since they are
> attempting to return them to you or destroy them now (and FYI, many firms
> will actually destroy the file free of charge for the client - at least for
> now).  Some firms agree to retain records on your behalf for a period of
> time after conclusion of representation free of charge in their engagement
> letter, and so long as the records are in the possession of the firm the
> firm is obligated to protect them on your behalf, but there isn't any law
> that obligates a law firm to retain client property/records on behalf of
> their client free of charge, and particularly not so once the
> representation
> has concluded.  That being the case, you actually end up with three options
> - 1) approve destruction, 2) take possession or 3) agree to be invoiced for
> the storage costs.  We all seem to agree that #1 probably isn't in your
> best
> interests.  I'd also say #3 isn't either, or at least it probably isn't.
> With the discourse about the file needing to be culled, you will likely end
> up paying to store stuff you don't need.  To me, #2 still ends up the best
> option because it gives you the control.
>
> In the event of appeal and/or spin-off litigation, yep, would be your
> responsiblity to re-produce the file.  That is one of the reasons I alluded
> to in my original response urging Vladimir to keep the file for a while.
>  If
> you don't keep the file, you will have to re-create that wheel (and re-pay
> for it), and may not be able to do so in a manner or in time to fully and
> effectively defend yourself, again.
>
> Larry wrote:  You may also want to ask for a copy of whatever finding aid
> they have been using ... and use that to make a determination of what (if
> any) of these records you may need for long-term use to limit what will
> ultimately be returned to you.
>
> Interesting idea Larry, and kind of goes along with what Lee said (and I
> agree with).  You might be able to ask them for an index containing the
> folder descriptions (or a doc-level index for electronic material), however
> in my experience, that will likely not end up helping much in the end.  The
> excess stuff tends to be stuffed in with its counterpart - copies in with
> the originals - so just a folder list likely won't help identify the chaff.
> You'll still end up popping the top off of the box and opening the folders.
> And Lee is right, no firm is going to cull your file for free after
> representation has concluded unless they are SUPER nice.  It is your
> property, and therefore your obligation to determine value.  Now, if the
> firm did a good job managing the matter while it was active, the file
> shouldn't be full of junk, but I've seen plenty of client files over the
> years that contained stuff that didn't need to be there (many lawyers are
> fond of the "just in case" argument!).
>
> Larry wrote:  Another thing to consider is to determine if during the
> course
> of representation as a business function the firm elected to scan/image and
> store any of YOUR records electronically, because IF THEY DID, these images
> would ALSO belong to you.  Typically these are things done at a cost to you
> that may (or may not) have appeared as a line entry on an invoice.
>
> GREAT point Larry about electronic records!  I can almost guarantee the
> firm
> has at least *some* electronic content that would be considered the
> property
> of the client, if nothing else certainly some of the email correspondence.
> Believe it or not, some firms still "print and file", so you may get the
> content, but you should confirm with counsel what exactly they are going to
> do with the electronic remnants (delete, keep, archive, ...?).  Not sure
> what the last part is about:  "things done at a cost to you" ...?  Are you
> referring to scanning of production, or other similar "bulk" jobs?  You're
> right, you probably won't see that as a line-item, but you might.  Depends
> on the firm, the atty's bill format preference, any invoicing requirements
> in the engagement letter, etc.
>
> Also understand this - law firms have an obligation to protect a client's
> interest, which is often interpreted to mean they must return client
> property to clients or seek/get their permission to destroy it, however the
> firm may also elect to keep a copy for their records, in whatever form it
> wants.  So, even if the client requests its file be returned, the firm may
> retain a copy (physical or electronic, or both) of the entire file if they
> feel it is in their interest to do so.  I have heard two primary arguments
> for this behavior: 1) we want to have a copy on hand in the event there are
> questions, appeal, etc. (as Larry mentioned above) - but again, they don't
> HAVE to do this - some are just nice like that, and 2) in the event the law
> firm feels it might need to defend itself against a malpractice claim.
> There are other knowledge management-y reasons they may keep portions of
> your case file, but wholesale copying is generally for one of the two
> reasons above.
>
> Larry said:  they are likely copies of your 'original originals', but they
> are no longer exact copies ... it's a common practice for records used in a
> case to either be Bates numbered, ... so now these are 'new originals'
> ...[someone needs to decide if these "new originals"] should be retained on
> that basis, assigned an independent record series code, and have a
> retention
> period applied to them related to what they represent.
>
> Exactly why you should devise a policy/procedure with your GC on how to
> handle outside counsel case files.  I am of the ilk that, even if there is
> an exact copy of a report that is managed under your corporate retention
> schedule according to the originating department/function, it is actually
> not a duplicate any longer due to its context.  It is part of the case
> file,
> which should be managed as a whole, not chopped up into parts.  There is
> value in the integrity of the context of a case file.
>
> Thanks for indulding me today list friends - this is the stuff that I'm the
> most passionate about so I have a tendency to not know when to stop!
>
>
> Julie
>
> --
> Julie J. Colgan, CRM
>
> [log in to unmask]
> http://twitter.com/juliecolgan
> http://www.linkedin.com/in/juliecolgan
>
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