I’ve talked a lot recently about the necessity of backing up your law firm’s data. Losing your data due to computer malfunction, user error, hacking, or any other event can be truly damaging to your law firm and your reputation. However, the rise of the Paperless Law Firm actually creates a new dilemma that few lawyers appreciate: what to do with electronic documents in closed files.
What you need is a system of archiving your client files that allows them to be preserved for an extended period of time, and in a retrievable format. Here are _ steps to archiving…
Before we begin, a note on your archived files:
There are a few quick points I’d like to discuss about what I mean when I’m talking about “archiving” records, as well as a few things you’d better already have in place:
Archiving vs. Data Backup
Some of you probably already know what I mean when I talk about the differences between archiving and data backup, but it’s worthwhile to clarify. Data backup is creating regular, routine copies of your existing files, whether on local storage media or in the cloud. As such, access to your backups and the speed at which backups can be performed are two of the most important features of a quality backup system. In essence, your data backup is a complete copy of your existing system.
Archived files, on the other hand, are stored away once and left untouched and – hopefully – forgotten. You’re less concerned with the speed of the backup than the stability of the media your archive is being stored on. You’re not so much worried about how quickly you can restore your archived files, but rather whether your archived file is a format still being used in 15-20 years.
Your Law Firm’s Data Retention/Destruction Policy
Now, this whole post assumes you have a document retention/destruction policy in your law firm. If you don’t, stop reading this immediately and get one. It’s essential. This post also assumes that you’re familiar with your state bar’s ethics rules regarding the retention of client files. As we all know, some documents must be kept longer than others, and some should be kept pretty much forever.
Your archival process will be, in effect, a part of this overall retention/destruction policy. But while the policy itself deals with which documents get destroyed and when, your archival policy will define specifically how those documents will be stored. So, now that we’ve cleared up the preliminary issues, here are 4 Steps to Securely Archive Your Digital Files in a Paperless Law Firm:
1) Create a list of the documents to be archived when a file is closed
This part is directly linked to your document retention/destruction policy – what documents are you going to keep. Your state bar’s rules of professional conduct will be very helpful in making this list. For more guidance on establishing your list, I strongly recommend checking out this article from the Lawyerist.
One thing you should understand about archived documents is that these are the ones you hope to never have to access again. Do NOT use archival processes for templates or regularly-accessed material (you’ll find out why in a minute). As such, I generally recommend that you only archive documents in their final version, and avoid duplication wherever possible. Keeping unused drafts and duplicate copies might seem smart now, but will you remember why they were kept in 20 years if your client demands the file?
You archive the essential parts of the file, those documents that need to be retained. We’re not hoarders here.
2) Select long-lasting file formats
This one might seem a bit trivial, but trust me, it’s huge. If your file looks like this when you try to open it…
… you’ve messed up. Why? Because it’s quite likely that your state bar requires that if you keep documents in electronic form, it has to be returned to your client in a usable format. How well do 1991 WordPerfect (not WordPerfect for Windows, remember) files open on your computer today? Well, that was 25 years ago. Are you prepared for what you might have to provide for your clients 25 years from now?
Use the popular file formats – PDF, RTF, JPG, MOV, MP4 – to save your data. Even if they get replaced, the most popular formats will be much easier to recover for a long time. If you have to use a proprietary format, only do so when there is a clear industry leader (such as Microsoft’s DOCX, XLSX). If it’s a unique file-type (not a regular document) or not an industry leader/standard, then convert it.
There’s no point in having an archive that you can’t read.
3) Identify your preferred storage system
With paper files, there was an easy, but incredibly expensive, storage solution – long term storage of your files. Once closed, you put the essential documents in a box, called Iron Mountain (or some other storage company), and sent your files to gather dust like the Ark of the Covenant.
So yes, to avoid all of these questions, you could simply print out the entire client file. But since we’re trying to avoid that, you’re going to be looking for other options. While there are several types of storage media available, some have clear advantages when it comes to archiving your files.
External Hard Drives
Although probably my preferred method for local backups, I’m not generally a fan of using standard external hard drives for archiving your files. The primary reason is that they’re simply not built to store data over a long period of time. However, if disconnected from a computer and stored in an environmentally suitable location, external hard drives are rated to store your data for 10-20 years.
However, due to the degradation of residual magnetism, file degradation of 1% per year to 1% per decade must be expected. As such, if you utilize this method, archive the same data to multiple external hard drives, and make a practice of refreshing the data every 2-3 years.
External Solid State Drives (“SSD”)
Definitely a better hard drive than traditional external hard drives, SSDs are going to be industry standard soon… for removable hard drives. While they handle environmental and electrical disruptions better than their magnetic relatives, SSDs still suffer from deterioration over time.
Additionally, SSDs are relatively new, which raises questions about how effective the long-term data storage will truly be. Experts recommend refreshing the data on an SSD every 1-2 years, and since any SSD purchased now is one of the early models, count on replacing it in 10 years.
Probably the industry standard for law firms up until very recently (if not continuing to this day), magnetic tape is still an effective archiving solution, particularly for law firms with a lot of data to save. Given that it’s removable, it’s one of the easiest to store and keep in bulk.
However, data kept on magnetic tape is vulnerable to a wide array of environmental threats. From stretching or tearing the tape, to erasure by magnetic fields, a lot can happen to your archives. Additionally, it’s not exactly an inexpensive media. It’s probably had its day, but remains an option.
No, not CDs. Not DVDs. Heck, probably not even standard Blu-Ray discs. While nice, they’re not designed for long-term storage. However, there are several new types of optical discs that not only outlast their popular media brethren, they’ll make sure your archives will (probably) be available to be read by our eventual alien conquerors in 3016 AD.
Ok, maybe not. But the options are growing increasingly more impressive, and they put their predecessors to shame: Write-once BD-R HTL (High To Low) can last for 100 to 150 years provided you avoid leaving it in a sauna or microwave.
Verbatim’s M-Disc BD-R and DVD+R write-once discs are rated for 1,000 years. Don’t believe me? Well, the U.S. Department of Defense believes… after testing them!
While you won’t need special tools to read an optical disc now or in the future (DVD drives are going to be available for a long time, if only for retrieving archives), you will need a special burner now. And they’re not particularly cheap. So, while definitely secure for long-term storage, cost-effectiveness might put this one out of reach… for now.
I’m a huge fan of cloud-based data backup systems, but I’m not sure exactly how I feel about using them for archiving files. My hesitance is based on several factors: 1) Security of the data is a HUUUUUGE concern, particularly since most experts recommend using encryption sparingly on your archives (you need to remember the password… 20 years from now!), 2) proprietary systems are generally disfavored when dealing with archives, and 3) negotiating Terms of Service can be hard enough for law firms without having to include a 25-year contingency for archives.
That being said, there are plenty of cloud-based options available. If you do use a cloud-based storage system for your archives, I strongly encourage that you do so only as part of a multiple-location system. There are too many question marks for me concerning the long-term viability of any one cloud storage option to trust archiving client files to the cloud alone.
4) Secure your archived files
Once your files are selected and you know where they’re going, there are a few steps you need to take to protect your archives.
Write-Protect your Archives
Whether switching your files to “Read Only” if stored on an external hard drive or cloud-based system, or saved to a write-protected/write-once media (for example, do not use a re-writable disc), make sure that you can’t accidentally overwrite your archived documents.
Encrypt Where Absolutely Necessary
With the exception of using a cloud-based storage system, your archives are generally going to be kept offline. As such, provided you have adequate physical security over your office or you choose a reputable storage company, the risk of data theft of your archived information is pretty low. Even cloud-based systems likely provide their own encryption of your stored data.
The point to remember is that archives are being kept for a long period of time – many years. Encryption requires a password, and if you’re serious about your encryption, it’ll be a serious password. If you don’t remember it, your archive will be worthless.
Only encrypt what you feel absolutely must be encrypted. And keep that password somewhere very safe.
Date, Label, and Document Your Archive
Make sure that your archives are dated and labeled in as detailed a way as possible – you should know from one glance exactly what case is in the archive and when it was put there. Once you’ve labeled your archive, keep a complete log of everything you have archived. Make sure to include the date it was archived, as well as the last time the data was inspected.
Archive with the Rule of Threes
In data security, the Rule of Threes means you should have three copies of your data in order to ensure that your data is safe. Further, at least one of those backups should be at a remote location – one fire should never wipe out all of your data backups.
Set a Schedule to Review and Update Your Archive
You’ve seen it a few times now – you need to have a schedule established for reviewing the files in your archive. The main reason to do this is to identify what files and documents you’re no longer legally required to keep, so they can be removed. Like I said before, we’re not running an episode of Hoarders here.
The other reason to review your archive is to ensure that your files aren’t being lost to deterioration or data corruption. While this step must be performed more frequently for storage media like external hard drives, it’s important no matter what system you use.
In the end…
Data retention and archiving your case files is certainly not a sexy part of your job as a lawyer. But given the importance that your state bar puts on making sure your client files are always accessible, it’s worth your attention.
A lean, well-managed archive system for your case files ensures that you’ll always have the documents that you need, while still taking advantage of the benefits that come with a paperless law firm.
About the Author
Brian Focht is a civil litigation attorney and technology enthusiast. In addition to being the author of The Cyber Advocate, he is also the producer and host of the Legal Technology Review podcast, and co-founder of B&R Concepts, a small business technology consulting company.