Why Can't Lawyers Go Paperless?

Short Answer:  The bates number.  Although, there are a variety of other reasons, including the fact that some lawyers simply prefer to print and review paper.

The Paperless Office

There was a time as a naive young man I believed that lawyers would one day "go paperless".  The year was 1982.  The place - Harris County, Texas District Clerk's Office.  Long time District Clerk Ray Hardy and Deputy District Clerk Hank Husky had a dream to go paperless.  Back then, the district clerk's office occupied a few floors of the old Harris County courthouse on Fannin Street.  That building was literally overrun with paper.  I was a young man just starting out as a court clerk and had the honor to serve on the freshly formed "Justice Information Management System" committee (JIMS) on behalf of the 125th District Court.  Then young Judge Michael O'Brien was very interested in automation.  At that time we had more than 3,500 pending active civil cases in the 125th and we were just one of many courts.  We were literally being overrun by paper. Filing cabinets were located in the court room - space was at a premium.  Ray Hardy dubbed the solution the "Paperless Office" and the committee undertook what became a more than 30 year mission to find a solution to the problem.  While I have long since realized that lawyers will never in my lifetime give up paper, I am pleased to say that Ray Hardy's dream of the "Paperless Office" in Harris County is very close to reality.

“In Harris County, [Ray Hardy is] also known for his crucial role in development of the Justice Information Management System, the automation of the office and his vision of the ‘paperless office’ – a vision that today is very close to reality.”  [See remembering Ray Hardy - 1927 - 2013]

The Bates Number

While courts and clerk's offices around the country are moving to electronic filings, we are still a very long way away from being truly paperless.  To be truly paperless, evidence must be "produced" in electronic form, and therein lies the rub.  While there may be many valid reasons why some lawyers don't want to produce in electronic form, the primary reason is the need to "petrify" a produced document into a format that can be labeled, tracked and exchanged.  Accomplished blogger Mike McBride describes this problem best. 

“One of the real challenges in moving firms to native production is the Bates Label, so I’ll be interested in seeing how you deal with that. Discussions I’ve had about native production typically start and end with “how would I keep track of which document is which if it’s not labeled?” Unfortunately, that question exposes the larger issue behind it, namely that attorneys are still printing their documents and reviewing them in that format, even when they have a sophisticated tool available to them to do review. When you print out a copy of a document, removing all of the available metadata, the label becomes the only way to truly tie it back to its electronic version. Until we get them to stop printing, I’m afraid native production is still a step too far.”  [Master Bates Numbers in E-Discovery | Ball in your Court]

Craig Ball, in his December 2012 post - Master Bates Numbers in E-Discovery - provides the answer that many of us have been "preaching for years".  

"...you produce in native forms and simply emboss Bates numbers when the evidence is downgraded to paper or TIFF for use in proceedings.  That is, you add Bates numbers only where and when they’re worth the trouble." 

Craig even provides language and a protocol that the parties can agree upon. I have used similar protocols for native productions successfully many times, by the way, so it works and saves significant time and money. 

Unique Production Identifier (UPI)

a. Other than paper originals, images of paper documents and redacted ESI, no ESI produced in discovery need be converted to a paginated format nor embossed with a Bates number.

b. Each item of ESI (e.g., native file, document image or e-mail message) shall be identified by naming the item to correspond to a Unique Production Identifier according to the following protocol:

i. The first four (4) characters of the filename will reflect a unique alphanumeric designation identifying the party making production;
ii. The next nine (9) characters will be a unique, sequential numeric value assigned to the item by the producing party. This value shall be padded with leading zeroes as needed to preserve its length;

iii. The final five (5) characters are reserved to a sequence beginning with a dash (-) followed by a four digit number reflecting pagination of the item when printed to paper or embossed when converted to an image format for use in proceedings or when attached as exhibits to pleadings.

iv. By way of example, a Microsoft Word document produced by Acme in its native format might be named: ACME000000123.doc. Were the document printed out for use in deposition, page six of the printed item must be embossed with the unique identifier ACME000000123-0006. 

Conclusion

While many lawyers are indeed adopting native production formats, we are still a long way from this becoming common practice.  The next evolution will be to produce in the "cloud" without the need to even exchange electronic copies, much less wholesale printing to TIFF or PDF.  The bates number will live on.  I don't expect to see electronic productions become common practice in my lifetime, but I will continue to carry the torch of the "Paperless Office" in honor of Ray Hardy's dream.  Never give up, never surrender.