E-Discovery: Texas Ahead of the Game

State and local governments are routinely confronted with new and complex challenges. Be it a technology change or a culture change, IT shops must be ready to adapt to the ever-evolving digital landscape. One issue warranting consideration and consternation is e-discovery.

For years, government agencies have dreamed of a paperless office. While no one is there yet, strides have been made toward that reality. But with a paperless existence comes a new problem - what to do with billions of bits' worth of digital documents. This is the challenge of e-discovery.

Though e-discovery could conceivably describe any effort to find electronic versions of documents, it's most often associated with legal proceedings, such as retrieving documents as part of litigation. Considering how quickly today's incident can escalate into tomorrow's court case, government agencies should be aware of what's out there to help tackle e-discovery requests.

What Is It?
On the surface, electronic discovery means exactly what it sounds like: discovering data electronically. It's what you used to do with paper, only electronically. But e-discovery is much more than that.

Having a good e-discovery strategy is an organization's first line of defense in a court proceeding. If an agency must deal with litigation, attorneys for all parties will likely request documents that may only exist in electronic form. In the past, if correspondence was requested, an organization would try to produce all the relevant memos and letters employees had written. Instead of instant messages, you rounded up all the sticky notes in your office. Now, many of those documents exist electronically.

On Dec. 1, 2006, amendments were made to the Federal Rules of Civil Procedure, including changes mandating that electronic documents in federal court are to be treated, legally speaking, the same as paper documents. The rules govern how federal courts deal with discovery requests in civil proceedings. It's important for state and local governments to be aware of them because state and local courts generally reflect federal court practices. That's where the amended rules come in - they're part of an effort to eliminate a lot of uncertainty surrounding e-discovery.

Texas, like some other states, proactively changed its procedures prior to the federal rule amendments. David Halpern, the assistant attorney general at the Texas Office of Attorney General (OAG), said that while the amendments raise awareness, Texas had already moved on e-discovery.

"This is hardly an issue or set of issues that is particular to the state of Texas," Halpern said. "The issues have been elevated in profile by the effective date of Dec. 1, 2006, of the Federal Rules of Civil Procedure amendments. Different states are responding differently; some have responded by modeling their rules of procedure after the amended federal rules. ... Texas was a little bit ahead of some other states in amending its rules of procedure some years ago to at least contemplate electronic data and how that should be addressed in litigation."

Texas isn't alone in its proactive policy toward e-discovery. Several states and organizations are actively becoming educated or implementing e-discovery solutions. The National Association of State Chief Information Officers (NASCIO) recently made available its report on how CIOs should approach e-discovery.

More than 95 percent of a typical agency's documents are now electronic, according to Washington state CIO Gary Robinson, chair of the NASCIO committee on e-Records Management and Digital Preservation. That means an agency that's involved in litigation will almost certainly have to produce digital documents.

"One of the specific new areas we're concentrating on [in Washington] is also a priority of NASCIO, and that is to look at how we are managing electronic records, to be responsive to our public record retention schedules, and being responsive to e-discovery rules that were recently adopted by the federal courts," he said.