Lawyers v. Archivists

Some questions about lawyers’ papers held in archives:

1) When does attorney-client privilege expire, and we’re permitted to serve materials up to patrons? For simplicity’ sake, we assume that privileged communications between attorney and client are like any other sensitive material, and can only be opened for research after all interested parties have died, our shorthand being 75 years for adults and 100 years for children. Except lawyers believe that privilege extends beyond the grave. If that’s the case, archivists of privileged collections are obligated to maintain confidentiality forever. Swidler doesn’t say some time after death, or once the lawyers themselves have died. Swidler is forever. So researchers will need permission from either the client or the donor or both, or from the legal heirs or assigns of either or both, in order to access these collections. And that chain of assigns has to extend to infinity. This combination of confidences turns the archives from a font of wisdom into a personal vault. And it’s a flagrant exploitation of archivists for lawyers to assert this kind of privilege. We accept materials in order that people, broadly, someday will be able to make sense of them; we don’t spend time and energy in the care and feeding of paper just for the archons. Right?

2) What about papers filed under seal? The 2010 “Sealing Court Records and Proceedings:
A Pocket Guide” indicates that most local courts have fixed time periods for sealing papers filed with the court, and that the periods exist chiefly because storing paper isn’t something courts want to do (PDF, page 19). Filings in federal court are delivered to NARA-operated records centers, where generally speaking, sealed case files are retained for 20 years. In determining what to do with documents created during discovery and filed under seal in the 1996 copyright battle between the Martin Luther King Jr. estate and CBS — incidentally, is there anything in the archives profession untouched by King v. CBS? — the court’s records guru said “Shred after 20” and the judge said “Actually, no.” And so:

This reappraisal served to exacerbate, rather than resolve, the sealed records problem. Unlike temporary sealed records, which may be transferred to FRCs and retained until their eventual destruction, permanent sealed case files cannot be transferred to NARA unless they include a date upon which the seal may be vacated. Id. at A.6(J). Thus, such files must remain on-site, in a virtual document purgatory, consuming valuable court storage space.

This was all done with apparent lack of irony, first as the judge’s and NARA’s efforts to be good stewards conspired to put the documents in the one place outside the shredder they’d be least accessible, and second as one of the sealed items NARA refused to take in was

15. seven documents filed in the United States District Court for the Southern District of New York in connection with a 1963 copyright suit initiated by Dr. King (obtained from the National Archives and Records Administration). See King v. Mister Maestro, Inc.,224 F.Supp. 101 (S.D.N.Y.1963).

which means first of all, when the parties sealed #15 they weren’t protecting the content of the documents, which were presumably still available at one of the NARA sites, so much as they were protecting the trail of discovery itself. Why? Apart from the fact that King’s heirs might have a superficial interest in concealing the fact that King once stooped to sue something called Mister Maestro, I have no idea.

3) Relatedly, I’ve seen photocopies gathered by lawyers from processed, open collections in my repository come back to me as “background research,” and protected work product. Why is work product in the archives at all?

The field promulgates brutally short retention periods for lawyers’ records, and I’m not a lawyer, but presumably this is to ensure that a wrecking-ball-style discovery request — like David Vitter of small-town prostitute fame FOIA-ing the words “carbon tax”, re which Vitter this is big-boy school, read exemption 5 and Wikipedia “chilling effect” — comes up empty. But some recent court rulings have led lawyers to the conclusion that a die hard records retention schedule is no defense against an adverse inference. That is, if you, a lawyer, reasonably anticipate that litigation is headed your way, and you follow a scheduled destruction of records, the court will still give you the stink-eye.

If an archives is available to you, the least risky path is to label all your junk “work product” — which is not discoverable — and dump it on archivists. Facilities are generally a big step up from those self-storage trailers at the edge of town. Professional staff make it their business to protect materials according to your injunctions, and to make sure nothing gets lost. Responding to discovery becomes archivists’ business, instead of paralegal temps’. Archives are an aquifer soaking up risk.

4) Who fixes the scope of the collection? Lawyers tend to assume that their email belongs to them. Doesn’t matter if it’s written during the course of their work for a university, or if it’s written during their time as a public servant. Graham Spanier requested access to his Penn State email account — not to a clone, or a backup — in order to “refresh his memory.” Andrew Cuomo likewise thinks of the archives as a first draft, subject to revision by the depositor. And if you can restrict access to photocopies of material available elsewhere, what’s to stop a party from demanding the closure of the originals? What’s to stop an institution’s counsel from identifying the risk inherent in all archives and just shutting the client’s archives down, in a frenzied dream of absolute opacity?

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