Unidentified Nail Management: A Model Policy and Procedures Manual for the Legal Environment

Article excerpt

In the dynamic and growing ever more technologically sophisticated realm of records and information management, mail management is perceived as neither exciting nor trendy as an area of practice or investigation. Although mail management is generally recognized as, at the very least, a related records management function,(1) document distribution - the fancier records management term of art - has accurately been identified as "the neglected link in the life cycle of records."(2)

Based on statistics which indicate that "[e]lectronic media (facsimile, e-mail, voice mail, on-line services) will continue to capture larger and larger segments of the business-to-business communications traffic ... one would think that the paper-based communication stream will be drying up.... Not so."(3) "While the rest of the business world has been mesmerized by the growth of electronic communications ... the old standby paper-based communications has continued to proliferate. Communications history has shown that the emergence of new media stimulates the use of older media....

So, while other forms of communication capture more attention and bigger budgets, incoming mail's expanding role as a vital link to the outside world goes unnoticed."(4)

MAIL MANAGEMENT AND RISK MANAGEMENT

The consequences - both real and potential - of undervaluing the importance of professional mail management and the costs of poor mail handling in the business environment are many. Real costs can be measured in the "aggregate effect of time spent recovering, redirecting, requesting, retrieving, returning or reading somebody else's mail...."(5) Substitute for the phrase "somebody else's" the words "unidentified," "undeliverable," "disposable," "unsolicited," and "unwanted" and the costs in man-hours wasted are compounded. A greater threat, however, is the potential cost that may be incurred if mail mismanagement causes a business to sustain a significant loss.

The current literature of Records Management (not to mention current legal literature) is replete with horror stories concerning recovery of incriminating records on tape and electronic media; on any given day, there may be discussion on the records management Internet list-serv regarding the legal troubles that may ensue from not having and/or properly implementing a records retention policy; in a pinch, the issue of lost/misplaced records within an organization can still raise interest and cause consternation among records managers. On the other hand, how often do poor or nonexistent corporate mail handling policies make the news and result in lost court cases?

If you've never considered the possibility of such a scenario, think again. On February 7, 1997, Judge Albert A. Stallone of the Court of Common Pleas of Berks County, Pennsylvania issued a ruling against a large law firm which had the misfortune of experiencing a "mail mix-up."(6) In his opinion in Caron v. Reliance Insurance Company, Judge Stallone "roundly criticized the mail-handling operation at the Philadelphia office of Marshall Dennehey Warner Coleman & Goggin ... [calling] the defense litigation firm 'negligent' in exercising lax oversight over its mailroom."(7) Marshall Dennehey's client suffered the loss of an arbitration appeal worth $500,000 due to the cited negligence and most likely had adequate grounds to sue its attorneys for malpractice.

This case is particularly noteworthy in two respects: (1) it is an example of the worst that can happen when management relies too heavily on outsourcing to provide routine administrative services(8) without providing adequate operational guidance and oversight;(9) and (2) it details an instance where poor outgoing mail practices at the originating location resulted in an unidentified mail problem at the receiving location.(10)

CASE LAW REVIEW

Since Caron was filed and decided at the county level, it may have gone largely unnoticed by the business and legal community had it not been reported on in the local legal press, and it is impossible to know how many other unreported decisions have been handed down which deal with internal mail handling procedures at business organizations and law firms. …