Legal documents belong to the client. In order to destroy documents, I would first check with the client. Unless you are the client?
This is what the CA State Bar requires. I'm also concerned about the term non-record. Was any of the so called non-record material ever used in the decision making process during the litigation?
Rules 3-700 and 4-100 of the Rules of Professional Conduct of the State Bar of California.
I. Client Papers and Property in Civil Matters
Given that an attorney's closed files may contain "client papers and property" to which the former client is entitled, the attorney's ethical obligations in regard to these items, in the absence of an agreement to the contrary, are the following:
*As to original papers and property received from the former client, including estate planning documents delivered to the attorney pursuant to the Probate Code, the attorney's obligations are determined by the law of deposits (bailments), Civil Code sections 1813 to 1847 and Probate Code sections 700 to 735.
*As to other client papers and property to which the former client is entitled under rule 3-700, before disposing of the items, the attorney first must use all reasonable means to notify the former client of the existence of the file, of the former client's right to examine and retrieve the contents, and of their intended destruction. While there is no specific authority as to what such a notice should contain, the purpose of the notice will be advanced if it states plainly that the files in question will be destroyed unless contrary instructions are received by the attorney by a specific date, and gives a reasonable opportunity to respond.
*If the attorney has no reason to believe that the items proposed to be destroyed include things required by law to be maintained or that would be reasonably necessary to the former client to establish a right or a defense to a claim, then if the former client cannot be located by any reasonable means, or fails to respond to the notice after a reasonable time, the attorney may destroy the items.
*If the attorney has reason to believe that the file contains items that are required by law to be retained or that the client will reasonably need to establish a right or a defense to a claim, the attorney should inspect the file for such items and should retain such items for the period required by law or according to the reasonably foreseeable needs of the client. The balance of the file may be destroyed.
*The attorney at all times must protect the confidentiality of the contents of the files, including the fee agreement. (Bus. & Prof. Code, §§ 6068, subd. (e), 6149.)
Brian E. Bard
Director of Records Management
Theodora Oringher PC
Los Angeles, CA
Brian E. Bard
Director of Records and Office Services Management
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THEODORA ORINGHER PC 10880 Wilshire Boulevard, Suite 1700
Los Angeles, CA 90024-4101
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-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On Behalf Of Martin, Deborah L
Sent: Thursday, June 27, 2013 2:29 PM
To: [log in to unmask]
Subject: Litigation Question
I need a good argument to present to my management, and so I immediately thought of this group because of the vast experience and because there are so many people that are better at explaining things than I am...:)
The question is, we were under litigation some time ago on a case that has since gone through court and reached a court decision and been settled with the litigants. Attorneys on both sides said they are no longer interested in any of these documents. During the litigation period we retained hundreds of boxes of nonrecord material that were potentially relevant to the case. This material is not related to the case, but when the case was initiated the attorneys sent a message out saying anyone in these organizations were not allowed to destroy any material. The record material they collected went to records storage, this is the nonrecord material they collected.
In my opinion, since the litigation case is over, this material should be processed as nonrecord material because it was nonrecord material before the litigation. We have some staff that think the material should be retained as record material relevant to the litigation case.
So I would appreciate any comments anyone can provide, even if it's to say that I'm all wet.
Deb Martin, CRM, CIP
Lockheed Martin
825 Jadwin, Room 454
Richland, WA 99352
509-376-3771
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