Legal history depends on primary sources related to litigation. Rich with research value, case files typically fall into three categories: open public documents; working files—which fall under work product privilege—and client correspondence, which cannot be shared.
In addition, many documents within case files are protected by attorney-client privilege. The attorney-client privilege protects documents, oral advice, and items created by the client or lawyer and supplied to the lawyer as part of the legal consultation.
Attorneys are always concerned about confidentiality and the disclosure of records and information. However, ethical obligations bound attorneys to preserve the relationship between attorney and client and maintain their communication in confidence. This principle encourages full, frank discussions between attorney and client in the interest of the administration of justice.
Work Product Privilege
A similar challenge is the work product doctrine, which protects materials developed by an attorney for litigation from discovery, prevents unwarranted inquiries into the lawyer’s files and mental impressions, and recognizes the need for privacy in planning legal strategy. This doctrine protects the lawyer’s research, analysis, legal theories, notes, and memoranda, prepared in anticipation of litigation or for trial.
In the interest of history, attorneys should not be compelled to divulge the confidences developed during their work. Certainly, the records of civil and criminal cases provide insights into historically important decisions and the handling and preparation of certain types of actions. Moreover, they allow a greater appreciation of the skills of lawyers; this is true particularly for lawyers who have fought—and won—significant legal battles.
The protections of these privileges extend into the archives. Depositing legal records in an archives does not remove the attorney-client privilege nor make the records available for general perusal without a significant amount of preparation. Only clients may give up their privilege and open their records. Archival repositories must take precautions to prevent the release of confidential records.
Terms for Access
Some archival repositories close sensitive records for a period, such as thirty years from the acquisition date or fifty years after the donor’s death, and then open them once the period has passed. An organization might use access restriction categories: open records, work product privileged, attorney-client privileged, and permanently closed records. Open records are made available immediately upon receipt at the archival repository that holds them. Work product privileged records may be opened twenty, thirty, or forty years after the close of the case. Attorney-client privileged records may be closed for 75 years from the close of the case and 100 years for cases involving minors.
Permanently closed records include classified documents, documents filed or placed under seal by the court, terms of confidential settlement or agreement, certain medical records (at the attorney’s discretion), and documents that reveal clients’ identities using pseudonyms. They are only opened when the records are declassified, unsealed, the protective order is modified, or the client or the client’s legal representative waives the privilege in writing.
However, for some legal records, and in an organizational culture highly risk-averse, closure periods may be considered unsatisfactory by the organization. One option (which may work for select organizations) may be to hire a lawyer to review the files for confidential, private, or sensitive materials. After reviewing the case files, the attorney will report to the archives team about any materials that should be kept private. An organization may also wish to contact original lawyers to remember any sensitivities to the cases before privilege review. In the future, if warranted, an advisory panel may evaluate issues raised after reviewing the materials.
Organizations may also wish to reach out to clients and their descendants regarding records made available to the public. Reaching out to clients and their family members can also be coordinated with an oral history project, allowing the people within the files to talk back to the archival record and fill in the gaps in their stories that are partially documented within archival materials.
Preserving Legal History
Legal history and the valuable information legal archives hold are critical for research and pedagogy. However, making these materials available requires a significant investment of forethought and labor. Archivists, collaborating with their legal colleagues, can help support this endeavor to preserve legal history.
Archivists have entered the digital decisive moment; digitized and born-digital images have substantially departed from the legacy of analog materials.
Archivists can accelerate gains from digitization by presenting a business case for digital transformation to those who lead their organizations.
Increases in remote working, changing needs, and user preferences for remote research have made digitization of archival holdings a priority.
Archival digitization projects are complex but when managed successfully their benefits outweigh the skills, costs, and time required