Three Electronic Records/Communications Essentials By Christopher Bauer

Welcome to 2011! As has been true for the last several years, few areas in ethics or the law are changing as rapidly as those related to the use and maintenance of electronic documents. Case law is rapidly evolving and, even so, it still lags behind the ever-changing uses and abuses of electronic technologies. Perhaps not surprisingly at this stage of the game, for every expert opinion on do's and don'ts regarding electronic media, there are others trumpeting contrary opinions.

One thing is clear, however, and that is that you cannot wait for it all to get sorted out before developing appropriate and effective strategies, policies, and procedures to deal with electronic communications and their retention. Even though your policies and systems may need to change over time as both ethical and legal mandates are clarified, there is far too much at stake to wait to develop those systems. For better or worse, sticking one's head in the sand is defensible neither ethically nor legally.

As a very basic set of concepts with which to start, here are three of the few about which no one seems to be arguing:

• If you wouldn't write it or sign/initial it on paper, don't write or sign/initial it electronically. As e-discovery case law emerges, it is more and more clear that electronic documents are viewed no differently than hard copies and many of us need to adjust our thinking to accommodate that. Just because it's a medium that doesn't feel as "fixed" as paper doesn't mean that you can be any less conscious about what you say in that medium.

• If you wouldn't throw out the paper version, don't throw out the electronic version. You must have a storage system that will both safely store and effectively index electronic records and communications.

• Train all staff using electronic records and communications in the do's and don'ts of your electronic records/communications policies and procedures. It is alarming how many companies only provide this training to certain segments of their employees-everyone needs to know what should and should not be both written and retained electronically.