Sunday, September 18, 2016

Unsuccessful Historical Treasure Hunts

I have recently heard from several attorneys. They each have incredible memories, and each was seeking something long lost.

One attorney was looking for a procedural order. He remembered the judge to which the case was assigned and the year that this order was entered (many years ago). He remembered the names of the parties. And he hoped that the Florida Office of Judges of Compensation Claims could help him find a copy of that order.

Another attorney contacted me searching for a merits order. He could not remember the judge, but recalled the district (or "perhaps it was" this other district). He recalled some of his questioning at trial, some of the responses, and the foundation that he had thus constructed for admission of some evidence. The attorney remembered who won the trial, the judge's reasoning, and described how he intended to rely on a similar logic path and that previous decision in a case he was now engaged with.

And, a third attorney remembered an evidentiary ruling rendered in a case. This memory (or record keeping) is truly admirable. He knew the case number, parties, hearing date, and judge. He recited portions of the argument, the case facts, and the judge's ruling. He lamented that the ruling was never reduced to writing, but wanted assistance with obtaining a copy of the hearing recording.

"Fascinating" is the only word I can muster. These individuals have tremendous retention, and I envy their ability to recall so much detail. Perhaps you will too when I tell you that what each item sought was at least 15 years old and one was significantly longer. However, short of assistance from Emmet Brown and Marty McFly, they are all likely out of luck. 

The Fla.R.Pro.Work.Comp. specifically address record retention. That has has not always been the case. Before the DOAH adopted rules, pursuant to statutory mandate, the retention of documents in this agency was controlled by the broader record retention laws. But now, Rule 60Q6.128 Destruction of Obsolete Records is important to know (italics are direct quote). 

(1) All case files that have been closed and inactive for a period of two years are declared to be obsolete and may be destroyed. Designated personnel of the OJCC shall be responsible for the destruction of obsolete records and reports in accordance with applicable statutes and administrative rules. 
(2) Recordings of hearings held before a judge shall be destroyed two years subsequent to the date of the close of the hearing. 
(3) Any forms, documents, reports, duplicate-filed pleadings, or other records filed where this rule chapter specifically provides that filing is not required or requested shall be destroyed upon filing. 

But that does not mean that your documents will be destroyed. It means that they can be. The OJCC began making digital images (PDF) of final orders in 2003. Various offices thereafter began digitizing entire paper files and storing those images. Paper was scanned, shredded, and recycled. The FLOJCC slowly, but surely, went out of the "paper" business. In 2005, we deployed electronic filing, and then spent years encouraging law firms to utilize the system. There were many motivators for that, but one was that it relieved us of the need to process and store paper from attorneys. As the filings increasingly became electronic, the OJCC retained everything filed. Case dockets grew. 

By 2008, electronic filing had gained widespread acceptance. Any paper that was sent to our offices was scanned and uploaded to case dockets. Parties, attorneys, and judges had unprecedented and incomparable access to case filings. OJCC file rooms were emptied, filing cabinets were disposed of, and the digital age dawned. In 2009 electronic filing became mandatory. Within a few years all of the remaining paper was disposed of. 

The good news is obvious. All of the documents now filed are on the case docket. When you look back in 2034 and want to find "that order" in "that case" back in 2016, there is every reason to believe you will be able to find it. With the cost of memory as low as it is, lawyers and insurance companies and even parties may well save their documents forever. What used to require a large room to store now fits conveniently on a flash drive with plenty of room left over. The FLOJCC has no plans to dispose of electronic document images, despite the cited provisions regarding obsolete records that would allow that. So, access in the future should be far simpler. 

But, in this transition to electronic records the FLOJCC did not attempt to docket and save all those documents, pleadings, and procedural orders from old cases. So merits orders and procedural orders from the 1990s and 1980s are simply no longer in our district offices. They were obsolete at the time of the conversion to digital images. Though some were scanned and uploaded, that was not required and did not occur as a rule. Though we would like to be able to provide you copies of an order from 1997, it likely is simply not available from the OJCC. 

Before the age of the Internet, there were paper files regarding workers' compensation cases. They were referred to as the "division file." When there was a hearing scheduled, a judge in that district would send word to Tallahassee and they would send "the division file" to the district for the hearing. Believe it or not, the state contracted for this delivery service with a company called the "Pony Express." No, they drove vans and trucks, but the imagery of antiquity in that name makes it seems much longer ago than it was. 

Those "division" files were imaged in the 1990s. The images were not PDF or computerized, they were actually pictures. The pictures were on a film designed to have many very small pictures on a transparent page. They were called "microfiche." When the Department of Labor and Employment Security was disbanded in 2001, its functions were divided among other agencies. The OJCC became part of DOAH; the Division of Workers' Compensation became part of the Department of Financial Services. 

And, it is possible that the 1990s order you are looking for in a particular case will be on a microfiche record at the Division, even today. The problem is that those microfiche cannot be "searched" for a word the way that a PDF (or folder full of PDF) could be. The way you find something on a microfiche is you look. You look page-by-page for what you seek. And, in time, those old microfiche and the machines that read them will be antiquated and unavailable.  

So, in the event those records still exist, knowing the case number (in those days, the injured workers' social security number) is critical. And, if they can find the case on microfiche, they may ask you to pay for paper copies of the whole file. It is an intensive process to run the fiche through a machine (called a "reader") and look for that needle you want in the haystack they have. Sending you a copy of the whole file is simpler from their standpoint. Then, when you receive a stack of paper from the Division, you will have to sort through it and see if the needle you seek is there. 

The digital recording of hearings began with the OJCC in about 2003 also. It was not welcomed by the judges. I recall when the technical experts talked us into testing the technology, and two digital recorders were installed. For a while, as we tested those, we had both the computer and a cassette recorder running simultaneously. But soon, the efficacy of the digital system was proven, the tapes were discontinued. And, for those hearings since the transition it has been relatively inexpensive and efficient to merely store those recordings indefinitely. 

As time passed, the old cassette tapes each reached a maturation point and they were destroyed. There was a time when each district was storing at least hundreds of tapes, and now there are none. There was simply no requirement, and no reason, for the state to store and maintain all of those old plastic tapes. So, if you are looking for a recording of a hearing that occurred before 2003, it is very unlikely we will still have that. If you are looking for a recording of a hearing since 2003 or 2004, it is likely that we have it, but under the record retention rules it may not be required. 

Not the answer that most would want. But the fact is that is how our history is stored, to the extent that it is still stored. 

There is a lesson to all of this. When microfiche came on the scene, the advantages and convenience were lauded. Storage became so much simpler than storing paper. The modernization was lauded and the convenience was apparent. But, today we find that system quaint and inconvenient by our current standards. What may happen tomorrow that will make our current PDF system (or digital recordings) seem as quaint? 

So, with the cost of memory and the convenience of storage, it makes sense for lawyers themselves to keep copies of orders and motions and memorandums and briefs. There is the chance that one day you may want to reference something again. The same is true of trial or hearing recordings, to which you are also welcome. While our effort is to keep that information available and accessible for you, and while the odds are that our current system will preserve your twenty-first century information for years to come, having in your office on a flashdrive is still likely preferable. 

And now you know. I welcome your calls and enjoy discussing ideas and hopes with you. It is intriguing to attempt to find these older documents that you remember so well. But in each of the three instances described at the outset of this post, I met with unmitigated failure. It is possible to find "ancient" documents, but it is simply unlikely. The OJCC simply no longer has many of those documents sought from the 1990s. So, I am hopeful that knowing these points will make you better informed and encourage you to save your important documents and recordings of today for your future reference.

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