When we talk about the Legal community keeping pace with technology, it is often related to courts and law firms being slow to adopt new technology. The focus tends to be on an unwillingness to change or an inability to incorporate new technology into current processes. However, we must appreciate how this community is driven by the written (or typed) word. If a lawyer is not writing language to convey a concept, they are reading language trying to interpret the meaning someone else was trying to convey. This carries over to the appropriate use of technology and how those rules are determined and then put into words. One requires the full knowledge of how technology works, an unbiased frame of mind to define appropriate rules, and the ability to put those rules into language that can clearly express the intent. A recent inquiry from a law firm highlights this very issue.
A law firm we work with has a group that is regularly handling cases involving U.S. Government Accountability Office (GAO) Protective Orders. This group was hesitant to use the document management system in place at the firm for fear of violating the (4) copy limit of protective orders.
The GAO rules stipulate “Each party included under a protective order is entitled to receive up to four copies of protected material (including the original and electronic copies), and is not permitted to further duplicate that material except as is incidental to its incorporation into a submission to GAO, or as otherwise agree to by the parties with GAO’s concurrent.” (U.S. Government Accountability Office - Office of the General Counsel, 2019). There is further language to stipulate that duplicating a file onto a CD-ROM counts as a copy and a copy sent via e-mail counts as one copy for the sender and one for each recipient.
After reading this language and understanding how modern document management systems work, we can appreciate the hesitation of this group. Most enterprise systems have some aspect of backup and/or replication to recover from system failures. It is also quite common to cache a copy of an opened file locally on a computer to minimize exposure to the enterprise system and improve performance. If each of these instances counts towards the (4) copy limit, it would be very difficult to store this content in a DMS without complicating the setup to avoid the duplication of content.
Since the most recent edition of these rules was published in June 2019, we went back to the prior editions to determine how much they had changed. The changes were very small, including the increase from (3) to (4) permitted copies and the mention of a CD-ROM as an example of a copy. It was clear that the rules had not yet been updated to account for more recent trends in data storage, even as small as shifting from CD-ROM to USB storage.
In an attempt to gain some clarity and identify how strictly these rules are interpreted, we reached out to the GAO’s Office of the General Counsel, unsure if we would receive a reply. To our surprise, we received a response within (3) business days.
The GAO response noted that the rules do not specifically address this situation (the use of an enterprise DMS) but the GAO has not historically imposed sanctions for the creation of the types of files mentioned. The response went on to note that imposing these types of restrictions would potentially be an unworkable practice and we should feel free to communicate with the GAO attorney assigned to each case to establish approved practices. The respondent also mentioned they are now considering whether clarification is warranted.
As you can see, the seemingly simple issue of limiting a party to (4) copies of a file can quickly become a complicated question as to what constitutes a copy. It might seem like a case where the rules should have been better defined and maintained but allowing room for common sense allows the flexibility to handle an evolving area without accounting for every possible scenario. The other valuable lesson is to inquire before interpreting for yourself to avoid unnecessary effort.
If you have questions about Document Management Systems and their implementation across the Legal Community, or the features and benefits of working with NetDocuments in a specific situation, contact the experts on our DMS Team by calling 877-676-5492, or simply request a consultation. We'll be happy to help!