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Around The Firms
29 May, 2008  
Post-it pedantics

Should document retention policies extend to the Post-it note and other forms of smoke signals? The forensic experts are being called in to advise on how tiny disposable documents can be factored into data management systems. Kate Gibbs has drum

imageDo you keep an emergency Post-it note stuck on your computer that says “see you downstairs for coffee”?

What about the fluoro pink one on your binder last week, asking when you were going to bother working on that gruesome insolvency?

What do you do with the sticky little message in which a colleague confessed to a small but vital oversight in relation to a banking client?

Does trouble or salvation lurk within the borders of these small, perfectly formed and highly disposable pieces of paper?

Is it safer to preserve or bin Post-it notes?

Increasingly these tiny “documents” are being factored into law firm “data retention” policies.

It’s “Post-it pedantics”, says one lawyer I spoke to, who prefers the cloak of anonymity. She thinks firms are taking risk management too seriously.

But attitudes must be changing because Deloitte’s forensics teams are being called upon by law firm clients to help build strategies around what to do with all these little pulped pieces of Malaysian old growth forest.

Deloitte calls it a “more holistic approach” to data management. Nicholas Adamo, a partner at Deloitte who has more than 14 years experience in legal technology, says his law firm clients are taking very seriously the decision about what data to keep.

Adamo says the increase in the number of clients asking what to do with Post-it notes, text messages and other transitory forms of communication traditionally overlooked in the e-discovery process, is all due to a shift in awareness.

“There is a greater understanding on behalf of the courts and on behalf of lawyers in general as to what data is available. They are now asking for a greater variety of data sources in current matters than what we have seen in the past decade.

“It is very reasonable in this sort of environment that there are those major corporations that would have a fair belief they may be subject to litigation in the near future. I think that is what is driving some of these people,” says Adamo.

There has long been an awareness by lawyers about the potential sensitivity of what they put in letters, emails and even telephone conversations that might be recorded.

It’s the hitherto overlooked little missives that are now the focus of anxiety. Deloitte tells us that its clients increasingly are asking about whether to keep or not to keep Post-its, and if they are to be kept in reproducible form, just how.

One law firm recently approached the forensic document people at Deloitte with the point that there is a likelihood they will soon be answering to a regulatory body.

The firm was advised that there could be salvation if there was a concerted effort to identify all sources of their current data, including Post-it notes. Adamo told Justinian:

“Everyone should be having a rethink about what data they have available and how they treat that data. It was not that long ago that emails were not necessarily considered or stored for legal discovery. Clearly the attitude towards emails has changed. This will continue to hold true as the courts and plaintiffs and regulatory bodies become more aware of where valuable data can be stored.

It may be that SMS messages may soon become the target for an investigation and may become relevant in the discovery process for a legal matter. It may be that we get down to the point where saving these Post-it notes becomes paramount if they contain data of relevance.”

imageBut Raj Lawyers managing director Niren Raj (seen here) says all this is quite ridiculous.

Rather than worry about how to store Post-it notes, or having a strategy around them and SMS messages, firms should “move into the 21st century”. Firms should be not allowing the use of Post-it notes at all, insists Raj.

“They are antiquated and having a policy on keeping Post-it notes is a waste of time.”

He says that firms should be only using methods of communication that can be electronically retained. He told Justinian:

“Everything we do; file notes, emails, client meetings, recorded phone calls, are all saved in our document management system. Anything of risk to our practice is stored there.”

He scoffs at the idea that law firms should be allowing anything at all important to be written down on a Post-it note.

“One thing that certainly would not be appearing in our national policy on document retention is how to keep your important Post-its.”

Maybe that’s the point of the Post-it. It’s a flexible little creation. It carries no electronic footprint. It can be kept, filed and preserved or scrunched up and eaten – depending how much assistance or pain it might render.

The Post-it is sticky but delicious.