Managing the bits.

Remember the days before the Paperless Office? The bad old days when stacks of files took up room in filing rooms and on desks? Or how about the mess that resulted in offices because of that anachronistic invention called paper?

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A funny thing happened on the way to the Paperless Office: it didn't happen. If anything, the problem became worse, and there is more paper than ever. Not only are humans reluctant to stop printing out everything they receive, we now have to keep track of paper documents and their electronic counterparts.

Those e-docs are not the same as paper. The legal system has still not completely adapted to the differences, but there are consequences even today for sloppy records management.

Certain features of e-docs make them difficult to handle. They are easily replicated. As a result, they are hard to kill (how do you really know every copy has been erased?) They can be changed without detection much easier than paper materials. They are dependent on other technology, so that if the reading equipment becomes obsolete, the information may be irretrievable. As well, the authorship of e-docs is much easier to hide or spoof.

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Like other legal areas, e-doc management has been affected by the American corporate scandals of the early 21st century. In Enron, Worldcom and Tyco, improper activities were uncovered because of the electronic records. This is not to defend what the principals did at those companies. The point is that many secret items may be exposed because of the nature of e-docs.

One of the consequences of Enron et al in the U.S. was the Sarbanes-Oxley Act, or S-OX. This legislation was aimed at making public institutions more accountable to their stakeholders, and included provisions for e-doc management. While owners of private companies in Saskatchewan might wonder why they should worry about a U.S. law covering public companies, they should at least pay attention. For one thing, accountants are adopting S-OX compliant rules for all of their clients, not just public corporations. Secondly, the American and Canadian economies are so intertwined that it is inevitable that rules similar to S-OX will appear in this country (some already have). Therefore, all businesses should take notice of these rules sooner rather than later.

It is a good idea to engage professional advisors to look at e-doc policies, and to develop systems that work for individual circumstances. While this article cannot cover all of the details, keep the following two points in mind.

First, e-doc management does not mean that packrats should inherit the earth. Having too much information accessible can be as dangerous as too little, whether for competitive, legal or other reasons. A successful business will properly balance the correct level of information to retain in all forms, including e-docs.

This brings up the second point. The best way to determine the proper balance is to develop a formal retention policy for records. Those who already have privacy policies will recognize many similarities, but the intent is to create rules in advance to govern when information is gathered, how it is stored, and when (usually not if) it is to be destroyed. A strong policy will inventory and classify documents, define retention periods, appoint a records custodian, and account for possible litigation.

There are other issues around e-docs. Protecting against alteration, maintaining proper backups, and decommissioning of equipment which can hold data are just a few of them. For example, how many people remember to erase the speed dial lists that are stored in memory when they dispose of an office phone? Think of how useful a list containing customer numbers would be to a competitor.

Management of e-docs is the quintessential example of something that seems completely unimportant until an issue arises. When it does arise, it can threaten the viability of the company itself, so steps should be taken early.

Craig is Managing Director of WMCZ Lawyers-Mediators in Saskatoon. Questions and comments on this article can be sent to him at craig.zawada@wmcz.com