Practice Tip: Create a Clean Transaction Record

I’m the only deal lawyer on the E-Discovery Task Force, so I come at issues from a slightly different perspective than the rest of the group.  In addition to the important litigation discovery issues brought about by electronic document creation, transmission and storage, there are numerous practical issues to consider.  Take, for example, the issue of creating and maintaining clear transaction records.

These days nearly every transaction, no matter the size, involves multiple electronic versions of the relevant documents with comments and changes tracked using the built-in features of Microsoft Word, different colored fonts or sophisticated versioning and change tracking software such as DeltaView.  While e-mail makes it easy for numerous parties to collaborate in the drafting process, it can also lead to an abundance of comments and conflicting change-sets in multiple parallel document versions.  Moreover, on smaller deals, it is not unusual for the parties to confirm their assent to the terms of a document via a one-line e-mail, sometimes without attaching the final document to which the parties are agreeing.

Any gain that may be made in convenience, efficiency and speed in the negotiation process through the use of e-mail can quickly be offset by the confusion of finding a confusing jumble of electronic documents in place of a clean final agreement, or a signed document still showing changes from previous versions.  Once the negotiation process is complete, take the time to create a clean version of the final document, with all appropriate changes accepted, all comments removed, and all blanks filled.  Distribute the final document to all concerned.  And, dare I say it, insist on a signed paper copy of the final agreement for your file.  These may seem like obvious points, but they are ignored more often than you might think.  A little time spent in these areas now could end up saving significant time and legal fees sorting through a mess down the road.