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Electronic filing: friend or foe?

15 July 19

Electronic storage and document management systems bring benefits for law firms, but they can also carry risks, particularly in the context of court actions in which the firm is a party

by Anne Kentish, Lauren Henderson

In the age of agile working, more firms have adopted a paper free or paper “lite” system of maintaining files. There are a multitude of benefits of such filing systems, which can be easier to search, manage, and share. 

However, such systems are not without their difficulties, particularly where a firm is asked to produce a hard copy of a file in implementation of a mandate, under a specification of documents or as part of a court action. In these scenarios, producing hard copies of files can become cumbersome, often involving trawling through thousands of emails and documents and then printing and arranging these into chronological order. In introducing and using such systems, solicitors should refer to the Law Society of Scotland’s Guidance on Ownership and Destruction of Files, Scanning and Archiving of Documents, the Guide to Cybersecurity and the Cloud Computing Advice for the profession as well as the GDPR Guide and ICO guidance. 

Compliance issues 

From both a risk management and a claims handling perspective, the eventual requirement to convert an electronic file into hard copy is something firms need to be aware of. If producing a file in implementation of a mandate, an incomplete file may mean that the firm falls foul of its professional responsibilities. In a court action, it can compromise the defence of the action or lead to an adverse finding in expenses. 

Firms also need to be aware of the cost of the transfer. The Society’s guidance on scanning and archiving states that if the terms of business are silent on the point, a client is entitled to request the file in either paper or electronic form and any printing costs should be borne by the practice unit (para 7). With this in mind, firms may wish to consider including within their terms of business a provision that specifies who will be responsible for any costs associated with producing a hard copy file. 

Missing links 

With particular focus on the production of a paper file in the context of a court action, the following situations may arise. 

First, firms may produce only what has been saved to an electronic case management system, without also searching their email systems. This can result in key correspondence being overlooked. For example, there may be an email in a fee earner’s inbox mentioning something that enables the firm’s defence team to advance a defence which is otherwise not evident from the electronic file. 

Even if such emails are produced eventually, problems can still arise. For example, if an email that opens the door to a defence is produced once the litigation is already underway, that can result in lengthy amendment procedures, additional expense and a compromised negotiating position. 

Secondly, firms may produce incomplete files because the electronic files are unwieldy or have not been properly managed, causing key documents to be overlooked. Documents may also be produced in the order in which they have been printed, instead of chronologically. This can make it difficult to decipher a chronological sequence of events. 

These scenarios act as a salutary tale that failure to maintain proper electronic filing systems could result in avoidable delays, increased expense, compromised defence positions and possibly also a firm falling foul of professional responsibilities. 

What does this all mean? 

In short, solicitors should not underestimate the importance of maintaining well organised electronic files. In an ideal world, the electronic file would contain all the correspondence (including emails) and would then be produced chronologically, with attachments to emails saved as attachments, and drafts marked clearly as such. 

Failure to maintain such files can result in solicitors falling into the traps outlined above, making life difficult not only for them but also for others (in particular, the firm’s insurers, the appointed solicitors, and the other parties to the action). 

In this day and age, there is no doubt that the benefits of electronic filing systems far outweigh the drawbacks. However, solicitors do need to be aware of the difficulties that can arise from poor maintenance of such files (and indeed from maintaining such files generally), especially within the context of claims in which they are defenders in a court action. 

Top tips 

To conclude, these are our top tips for maintaining good electronic files: 

  1. Save all correspondence to the electronic file. 

  2. Save attachments separately so that they do not get lost in the system. 

  3. Make sure attachments are given adequate names so that they are easy to identify. 

  4. Make sure emails and documents are named appropriately, again so that they can be easily identified. 

  5. Mark documents that are drafts as such (watermarks are useful in this regard). 

  6. If asked to produce a hard copy file, make sure to check internal email systems for correspondence that may not have been saved to the electronic file. 

This article was written for Lockton, brokers to the Master Policy, by Anne Kentish, partner, and Lauren Henderson, associate, Clyde & Co 

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