I agree with Bill wholeheartedly, with the caveat that, for law firms looking for an easy way out, I don't think we should hand them one on a plate. I wouldn't necessarily offer up the fact that there are workarounds that could save a firm time and resources; I feel they have to earn the right to use such workarounds by making a good faith effort to be diligent and ethical with respect to their record stores. Also, in Bill's hypothetical below, the firm has client/matter file indexes. As long as the boxes in offsite storage are mapped to matters, it's probably safe to make certain assumptions about the value of the records. But I'd be wary of making the same assumptions about old boxes with not enough information available to assess the value of the contents or old boxes tied to inactive clients that are still in existence and can be easily contacted for disposition instructions.
And with that, I say everybody have a good weekend!
--Lee
Lee R. Nemchek, MLS, CRM
Vice President, Enterprise Records Governance
Oaktree Capital Management, L.P.
333 South Grand Avenue, 28th Floor
Los Angeles, CA 90071
p +1 213 830-6252 f +1 213 830-8504
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www.oaktreecapital.com
-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On Behalf Of Creamer, William
Sent: Friday, April 26, 2013 1:43 PM
To: [log in to unmask]
Subject: Re: Ethical Bound to Contact Clients before Destroying old cases
I think that a law firm, or any entity, which has records that are 40,50, even a hundred years old, and you big firms out there know who you are, can make a defense that it is unreasonable to spend significant time and expense to try to locate an entity or a successor, if any, for records that are that old. That a reasonable assessment of those records, if it concludes that there is little or no continuing value, can be a basis for a destruction project seeking to reduce current storage costs.
Here is an example. Assume you have a matter index of files created for the matter. The firm has represented railroads in the past or their insurers. A matter, opened in 1963, concerns an insured freight car loaded with fruit that is side tracked in the Summer heat. All of the fruit spoils. The matter is settled. You have dozens of matters just like this one, from the 1920's to the 1970's. A cursory search concludes a successor client entity, if any, is uncertain. Can you make a legal assessment that the records have little or no continuing value? I would say yes.
I'm saying this, not only because Donald Skupsky discusses this in his books on retention, but also because the legal out is always what is reasonable. Of course this is predicated on whatever the risk comfort level is at the firm, which will obviously vary.
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