Technology and cloud adoption have made it easy for paperwork to pile up, and become difficult to manage. The discovery process for a single case can lead to thousands of paper and electronic documents alone. Law firms must have a well-defined document retention policy and an effective data preservation strategy.
Most law firms have been slow to adapt their document retention and deletion policies over the last decade. The shift to remote work during the 2020 COVID-19 pandemic shed new light on the need to modernize document retention policies to extend to electronic files, communication software data, and cloud storage. Still, law firms and legal IT departments struggle to create modern policies under overwhelming data burdens.
Inspired by these common pain points, our dedicated preservation teams support law firms in creating tailored document retention policies. If your team is just starting to look into how to create an effective law firm document retention policy, here are some critical things to know.
Law Firm Document Retention Policy
How long should you retain client files?
The American Bar Association (ABA) record retention guidelines require a five-year timeline to retain most client materials. State bars also have their own policies regarding the minimum time to keep files. At the state level, various types of legal matters have longer retention time requirements.
Some legal documents required to be kept longer are:
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Tax documents
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Estate planning
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Criminal matters
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Prenuptial agreements
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Continuing child custody or support obligations
For most client files, timelines range between five and ten years.
What paper and electronic files must be retained?
Whether files are paper or electronic, clients and courts still expect you to preserve them properly. Law firms have the additional burden of identifying and preserving electronic data across all digital platforms. This can range from obvious sources like email records and electronic documents to platforms like video and audio cloud storage. Additionally, communication data stored on individual devices from messaging platforms like Microsoft Teams and Zoom might be included.
Responsible law firms must reimagine and invest in the unique challenges of preserving this data. Having tailored experts guide you through the process can reduce the burden on legal IT departments and reduce the chances of costly sanctions.
Electronic Sources To Preserve Legal Data From Can Include:
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Practice management software (MyCase, Clio, RocketMatter)
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Cloud storage (Microsoft OneDrive, Dropbox, Google Drive)
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Video communication cloud recordings (Microsoft Teams, Zoom, Google Meet)
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Instant messaging software (WhatsApp, Microsoft Teams, Slack)
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Email software (Microsoft Outlook, GSuite)
Retention and preservation start before discovery
It’s important for law firms to start clean data collection and preservation from the earliest stages of Discovery or eDiscovery. Many law firms treat document retention and preservation as reactive processes. They wait until the end of a legal proceeding to collect, digitize, and safely store documents. This is a missed opportunity to align document preservation and hurts efforts to reduce data loss. Enabling legal IT professionals and preservation teams to get involved early in the discovery process can reduce data loss.
Similarly, firms may also consider training attorneys and staff members on their unique collection, legal hold, and document retention strategy. This awareness creates an empowered workplace where members involved in all stages of the litigation process can recognize the need to preserve documents.
Legal document retention and destruction policies go hand-in-hand
Alongside having a strong document retention policy, firms should proactively consider their document destruction policy. Law firms must have an automated method to detect when documents and cases age out of the required retention timeline. Failure to destroy case documents puts the firm at greater risk of sanctions and prolongs unnecessary storage costs.
Having a process to destroy documents is critical to protect yourself from claims that you’ve mishandled materials.
Your destruction policy can include:
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A review process in which an attorney can review the case files for original documents, personal identifying information, or materials required to be preserved for longer periods.
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Contacting the client to ask if they would like to have any of the files returned to them.
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Protocols for wiping electronic files in a way that no data can be restored.
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Protocols for properly disposing of paper documents
Document retention policy review and compliance
Document retention policies for law firms evolve as new legal requirements pass or when it’s time to include emerging technology. Firms must assign someone within the organization or a third-party partner to review the policy and litigation workflow periodically. This ensures your policy is still compliant with the ABA requirements and state bars.
Firms can also use this review as a checks and balances system to ask themselves questions like:
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Have we included new practice areas that haven’t been implemented in the retention policy?
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Have we added new technologies that may have data to retain?
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Are there new attorneys that haven’t been trained in our end-to-end policy?
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Does our IT department need additional storage for physical documents?
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Is there a need to include additional policies?
Taking the time to self-audit during review processes is an opportunity to decrease data loss or costly oversights.
Creating your law firm’s document retention policy
Technology can be a law firm’s greatest asset or its greatest risk. Legal teams have the responsibility to collect, hold, and manage more data than they can handle manually. Even large legal IT teams need protocols in place to know how to properly retain or destroy data.
Partnering with a legal technology firm like UnitedLex that specializes in legal hold and preservations can reduce the burden on your team. We provide consulting, tailored data strategies, execution, and preservation management that integrate into your discovery and litigation workflows.
View more information on our Litigation Support Services or download our brochure on Building An Optimized Preservation Program.
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