Question: If I have a closed file and the entire file has been scanned on my server, do I have to notify the client if I am going to destroy some of the paper file (not medical records, depo transcripts, original discovery)? My intention is to box up a mini version of each paper file for storage, shred the other stuff, and keep the electronic file indefinitely.
Answer: The optimal approach is to notify clients when they retain you that you how you will deal with paper, both during the representation and after it is concluded. The way to do this is in a document that they sign at the outset, otherwise known as an Engagement Agreement. My engagement letter contains the following provision to address this situation:
“Retention of FilesMy policy is to scan and otherwise digitize all file materials, and to use and retain as little paper as possible. I therefore ask that if you, for some reason, require that paper files be kept that you notify me of that requirement at the outset (i.e. before you sign this agreement) so that I decide whether to accept representation of you in this matter.
After my representation is over I will gladly provide you with a CD-ROM or other digital storage device that contains all of your case and file information in digital form. No guarantees are made that client files will be retained for more than 3 years after the representation is terminated. Again, I keep no paper except for documents that absolutely require paper originals (e.g. promissory notes and wills).”
Notice, I don’t say that I will “notify my client that they can have a CD-ROM,” but if they ever ask for one I can easily provide a digital copy of their entire file. It’s frankly more trouble for me to delete client files that I have in electronic form than to keep them. So I keep them for a lot longer than I’d ever be required to.
Bottom line: start using an engagement agreement that addresses this situation up front. Even if you aren’t paperless yet, I’d reserve the right to digitize all the paper and only rely on a digital copy now. That way you won’t face this situation later when you are paperless and have to decide what to do with a closed case.