Digital-Age Document Management: A How-to Guide

The mission-critical job of document management is so much easier in the digital age (think searchability and automation) - and so much harder (think secure storage and transmission). But with mandatory e-filing coming soon to Illinois, the stakes for getting it right have never been higher.

Twenty years ago, law firm document management revolved around meticulously organized manila files, metal drawers, and bankers boxes, with instructions not to fold, spindle, or mutilate them as they were being physically transported to another attorney or a courtroom.

While those physical manifestations still remain to varying degrees in law offices, document management today is more likely to focus on electronic files that need to be created and managed on a server or in the cloud, with instructions to ensure they're adequately encrypted before being electronically transported to one of the aforementioned destinations.

Not a DIY project

Paul Unger, a partner with Affinity Consulting Group who works with attorneys and law firms, recommends that legal offices use a top-shelf, sophisticated electronic document management system to handle the creation and storage of most types of documents (discovery-related litigation documents need another kind of special system, which is discussed below).

"If we're talking about transactional attorneys - or even if it's litigation, but it's your own work product, your own correspondence and responses - anything we would draft ourselves, pleadings, motions, I would recommend in today's age that a firm have a document management system," he says.

The big four. Unger recommends four primary choices: Worldox, NetDocuments, iManage (formerly Interwoven Worksite), and Open Text (formerly Hummingbird). Those programs all help lawyers create, manage, and save files, and they also address perhaps the most vexing problem lawyers face in this regard: documents attached to emails that never quite go where they're supposed to go. (For links to vendors mentioned in this article, scroll to the bottom.)

"Before, it was all paper, which would sit in the 'out' or filing tray for a couple of days until it made its way to the paper file," Unger says. "For electronic information attached to an e-mail, it's still stuck in the in-boxes and 'sent' folders, and they're not in the client matter folder. You have an electronic file that's not complete, and a paper file that's not complete. Those four products all do a fabulous job of automating and saving the e-mails."

Law firms still typically organize information by client, in many instances with multiple matters under a single client, while internal offices of general counsel might instead use practice area or type of case, Unger says. "If it's all structured that way, then all the work product goes into that same place," he says.

Unger mentions several other features the top four vendors provide:

• A strong search engine in which the user can index every word in every file and do Boolean logic searches across entire systems.
• The ability to institute forced compliance by lawyers in the firm, a feature that can be turned off if needed. "That's pretty important because when a firm spends, it can be hundreds of thousands of dollars, you want to be sure you force [lawyers] to use it. Otherwise they just have another place to save something," he says.
• Strong integration with email that proactively asks whether the user wants to save messages and attachments into the system, which he notes saves a lot of time otherwise spent searching for needles in the haystack later.
• Version control to track edits, an important feature given how lawyers send documents back and forth to one another constantly. "To be able to 'glue' them all together in one set and see the entire history [of a document's edits] is very important for lawyers," he says.
• Remote access and mobility, because "people want access to those documents from their iPads, wherever they are."
• Integration with scanners that allow a user to load a document, scan it, and save it directly into the document management system. "You have a 500-page document and you can automatically scan-save," he says.

Other options. In addition to the four vendors Unger mentions, he notes there are several "middle ground" choices that aren't robust, dedicated document management programs but have some document management features. They include case management systems like Clio, TimeMatters, Amicus Attorney, PracticeMaster, RocketMatter, Actionstep, Lexbe, and NextPoint. If you already use these programs, you can use their document management features and save some money. But you'll be trading dollars for high-level functionality.

Of course, penny-pinching attorneys and firms can try to manage documents in a basic Windows folder structure rather than a separate program, but that quickly gets cumbersome for all but the smallest offices. "If you have over 10 users, it gets harder to manage and get people to use the same things in a consistent way," Unger says.

Managing discovery - a separate challenge

The discovery process and the documents it produces pose a special challenge, Unger says. Discovery cannot be effectively managed in the four document management systems that Unger otherwise recommends. He notes there is a "whole other genre" of software available for this purpose, including Relatively, Lexbe, and NextPoint.

"There's a myriad of solutions," he says. "Dozens and dozens of electronic discovery tools are available and are used depending on the e-discovery needs." He adds, "You can use those four [DMS products he generally recommends] for some smaller, less demanding, simpler discovery."

Trent Bush, a partner in commercial and banking law and commercial litigation at Ward Murray Pace & Johnson P.C. in Sterling, says his firm uses Citrix ShareFile, a cloud-based vendor that works similarly to Dropbox or Box but with more security, for discovery documents. (See sidebar for info about his upcoming CLE presentation.)

"[ShareFile is] making a pretty strong play for attorneys and for the legal market," says Bush, who will speak on "Electronically Producing and Sharing Discovery Documents - Do's and Don'ts" as part of a Solo & Small Firm Practice Institute Series symposium on June 2 in Naperville. "They have a subscription service with different levels - the more you pay, the more you get in terms of size and features."

Whichever service a firm uses, Bush says it should enable uploading and adequate encryption of files. ShareFile enables the owner of a folder to know who's accessed a document and when it's been downloaded and provides control over whether the document can be downloaded in the first place or just viewed. Bush will provide a hands-on demo of ShareFile at the June symposium.

Encryption and security: Getting short shrift?

Given the critical importance of client confidentiality, the ability to transmit documents securely is a must. Unger says there's another entire set of software, including Protected Trust, Barracuda, and App River, that handles e-mail encryption so documents can be securely attached and sent.

Even so, many attorneys and firms still do not use encryption as a matter of course, and ABA Model Rule 10.6, and Comment 18 to Illinois Rule of Professional Conduct 1.6, "do not create a duty to encrypt e-mail unless the client requires it, or in special circumstances," Unger notes. "Ten years ago, I remember doing e-mail seminars and telling people, 'Mark my words, in two years we'll all be encrypting e-mails,' and 10 years later, we're not."

In addition to e-mail, lawyers and firms also have access to a number of FTP cloud-based sharing tools like Dropbox, Box, GoogleDocs, and ShareFile, Unger says. But too often they use the free version of Dropbox, which does not provide the same level of encryption, nor does it come with control over one's individual account - or even ultimately the "owner's" right to the folders created.

"They should be using Dropbox for Business, and then if it's client confidential information, especially if it needs to be highly secure, I would recommend layering some encryption tool on top of Dropbox," he says, naming Sookasa, Boxcrypter, and Vivo as some of the top choices in that additional "genre" of software.

Cloud-based e-discovery tools like Relativity and NextPoint already provide the ability to share documents in the cloud, obviating the need to use Dropbox or another FTP tool, Unger adds.

Bush notes that attorneys in Illinois have received an ethical reminder to ensure security of cloud-based documents under ISBA Professional Conduct Advisory Opinion 16-06, issued in October 2016, which states, in its Digest: "A lawyer may use cloud-based services in the delivery of legal services provided that the lawyer takes reasonable measures to ensure that client information remains confidential and is protected from breaches. The lawyer's obligation to protect the client information does not end once the lawyer has selected a reputable provider."

"That would be applicable whether it's discovery or you're sharing a document with a client," Bush says. "You have ethical duties to make sure something is secure, and if there are questions whether [a third party] accessed something, you would be able to determine that. It's just understanding your vendor and what service you're using, and what security they offer."

Yet Bush resignedly agrees with Unger that some attorneys and firms still think they can attach confidential documents to e-mails and send away without encryption. "It's…essentially sending a postcard," he says.

He notes that he received an e-mail from a local attorney with bank records attached, including loan documents that had Social Security numbers on them. "That [kind of information can be] picked off at will. Is it going to happen every time? Of course not. But when you know what the risks are, you need to be choosing a vendor with the appropriate safeguards in place."

The game changer: Mandatory e-filing

The issue of electronic transmission of documents will gain another dimension in Illinois starting July 1 and ramping up even further on Jan. 1, 2018, the deadlines by when the state has mandated that documents must be filed electronically for all civil cases within the Illinois Supreme and Appellate Courts, and then all trial courts, respectively. (See next month's IBJ for much more about mandatory e-filing.)

Illinois Supreme Court Order M.R. 18368, handed down on Jan. 22, 2016, mandated that e-filing flow through a single, centralized electronic filing manager integrated with each court's case management system, with the exception of 15 counties granted exemptions to continue to use their existing e-filing systems.

What e-filing lawyers and firms need for starters, if they don't have it already, is good PDF creation and editing software, Unger says. That could be the well-known Adobe Acrobat, which is the most expensive option, or other tools like Nuance Power PDF, FoxIt, PDF Docs, or Nitro.

"A firm absolutely needs PDF software on nearly every desk," he says. "That's going to give them the ability to manipulate the PDFs they're going to be filing with the court. They need to generate, manipulate, modify, create a table of contents, and create bookmarks. Sometimes they need to redact information."

Secondly, Unger says, firms need to invest in scanning hardware if they have not previously, although that need has receded somewhat as fewer documents exist only as hard copy. "Five years ago, I was recommending scanners on everybody's desk," he says. "Today they're probably needed on half of them."

Lastly, lawyers need to attend their local court workshop on how to e-file. "Some courts will require a certain 'flavor' of PDF," Unger says. "They'll have to look at each local court's specific requirements and instructions on how to perform the upload. It's not rocket science."

Bush echoes much of this advice. "I would say, start early," he says. "The July 1st date for the appellate courts is coming up very quickly. Attorneys who have not practiced a lot in federal courts [where e-filing is already required] need to start especially early. Attorneys who do have some practice in federal courts…I don't think will be…as challenged by the change."

The Illinois system will be different than the federal Pacer system and might temporarily frustrate those who practice in federal court, but overall federal practitioners will have a leg up, Bush says. He notes that the Administrative Office of the Illinois Courts and its electronic file management vendor have been traveling the state and educating attorneys and firms.

"[Attorneys] may not understand that they will have a choice of electronic service providers," he says. "You want to realize that you will have different options and to understand what those options are and what services you need. The important thing for practitioners is to stay tuned and go to some of these vendor fairs.… I would encourage people to get started on that. July 1st is coming up pretty quick, and Jan. 1, 2018 will, too."

Avoid the double-filing trap

In moving to electronic document creation, management, and transmission, whether due to the court mandate or on their own, attorneys and firms need to avoid the trap of doubling their work by maintaining a paper copy of everything as well, Unger says.

"One of the reasons we want document management software is to reduce or eliminate paper," he says. "The big mistake I see law firms make, from an efficiency standpoint, is that…they're doing this parallel filing system, and it's costing them a lot of money, and doubling the work."

In some cases, Unger says, that's because they don't have a way to retrieve and review documents away from the office. "If they had a document management system with a good mobility solution, so they could get to their documents on an iPad or a laptop, they wouldn't need to maintain both systems," he says. "One of the huge benefits of document management is that it provides that structure that a firm or a legal department needs. It gives them the compliance so everyone's using one system and not saving in five different places."

And the mobility aspect ultimately enables them to stop maintaining the paper file, Unger says. "The reason they have a bankers box or three-ring notebooks is that when they leave the office they don't have an electronic way to bring the file with them," he says. "Document management systems solve those problems."

Ed Finkel is an Evanston-based freelance writer.
edfinkel@earthlink.net