July 21, 2008 By Chad Vander Veen
State and local governments routinely confront new and complex challenges. Be it new technology 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.
E-discovery is often associated with legal proceedings, such as retrieving documents as part of litigation. Considering how quickly today's incidents escalate into tomorrow's court cases, government agencies should know what's out there to help tackle e-discovery requests.
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 request documents believed to be relevant to the case. Today many of those documents exist electronically, in the form of e-mails, instant messages or text messages.
On Dec. 1, 2006, the Federal Rules of Civil Procedure were amended to require that electronic documents used in federal court proceedings be treated the same as paper documents. The rules govern how federal courts deal with discovery requests in civil proceedings. The changes were part of an effort to eliminate uncertainty surrounding e-discovery in federal cases. They impact state and local cases too, since these courts often follow federal court practices.
More than 95 percent of a typical agency's documents now are electronic, according to Washington state CIO Gary Robinson, chair of the National Association of State Chief Information Officers (NASCIO) committee on E-Records Management and Digital Preservation. An agency involved in litigation will almost certainly have to produce digital documents.
"One specific new area 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 to e-discovery rules that were recently adopted by the federal courts," he said.
Washington isn't the only state tackling the issue. Texas changed its procedures prior to the federal rule amendments. David Halpern, assistant attorney general at the Texas Office of the Attorney General (OAG), said 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 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 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."
It can be argued that the nation's penchant for litigation is largely responsible for the failure of the "paperless office" dream. At the same time, e-discovery rules themselves can be burdensome.
"If you create something of a documentary nature ... it may be subject to discovery," Halpern explained, "and the expectation is you must treat that substantive communication no different than you would a pen-on-paper communication. The convenience we've all come to know and enjoy of electronic communication carries with it the expectation that it will be handled no differently."
In February, dozens of public-sector IT professionals gathered to discuss the latest issues, at Government Technology's CIO Academy in Sacramento, Calif. A well attended session on e-discovery illustrated just how much confusion surrounds the topic. Many of those at the top of their field admittedly struggled with e-discovery. Former California CIO Clark Kelso moderated a panel of public- and private-sector e-discovery experts, most of whom were legal professionals.
A key point made in the session was that virtually any data that can be extracted from a digital source can be considered electronically stored information (ESI), and
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