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

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