E-Discovery Basics/Illustration by Tom McKeith papers flying out of computer screen Illustration by Tom McKeith

therefore, could be covered by an e-discovery request, according to the Federal Rules of Civil Procedure. That's why Tom Greene, special assistant attorney general of the California Office of the Attorney General, insisted government IT organizations must partner with legal counsel to formulate an e-discovery strategy.

"This has to be partnership with your in-house general counsel, your outside litigator and your own staff," Greene explained. "Basically within 90 days of a case being filed, I, being your lawyer, have to go talk to the other lawyer, and that has to be a conversation that deals with ESI issues. We then jointly supply a report to the court, and then the court has a case management hearing and a case management order is issued."

As the CIO Academy panelists repeatedly said, an agency should be prepared to distinguish between documents that are simply government records and those that could be used as evidence. But how are IT folks supposed to know how to do this? They aren't, really, which is why the panel recommended agencies partner with in-house counsel.

"The advice I and our task force have given state agencies begins with making sure there is a records management program that is understood up and down the chain of command," Halpern said, "so that all employees have awareness and understanding of their responsibilities to ensure state records that are created are properly categorized, retained and preserved so they could be produced either in a public records request or in litigation."


Fix-Alls Don't Exist

There is no single e-discovery solution. But there are several strategies to consider. Washington state is a good example: Robinson and his staff have begun a document management project they call Washington Vault.

"We're looking at how we were managing those electronic records, and how it might be best to provide a common storage and retrieval system for electronic records to be responsive to agency administrative operations, but also responsive to records requests made from the public and the new federal electronic discovery rules," said Robinson.

Still in its early stages, Washington Vault currently is limited to the management of e-mail documents. The vault will use two of Symantec's Enterprise Vault products: Mailbox Archiving for Microsoft Exchange and the Journaling and Discovery Accelerator. Robinson talked of plans to expand the program to encompass other electronic documents, like instant messaging.

Full-featured, off-the-shelf document management solutions are available as well, including products from IBM, Symantec, CA and EMC. The trouble is procuring these products may be too costly for some jurisdictions.

Budget-friendly solutions exist, though they tend to lack some features. Mimosa Systems offers an e-discovery solution that it claims smaller municipalities can afford.

Safety Harbor, a city near Tampa, Fla., is like many towns in the United States. Safety Harbor's population is less than 20,000, but as Information Systems Manager James Burke said, "e-mail was increasing at alarming rates." Like Washington, capacity issues and public records requests put Burke and his three-person staff into a difficult position when trying to manage e-mail.

"We needed an efficient way to process public records requests and be able to produce e-mails in accordance with the [freedom of information] laws in Florida," Burke said. "The IT staff was not happy because we somehow got thrown in there as keeper of the records, even though that's not generally considered an IT function."

Burke said he chose Mimosa NearPoint software because it offered technological muscle and low cost: about $30,000 for two servers, software and the install. The software gives Safety Harbor features like single-instance storage, continuous capture and archiving and one-click recovery. Also, Burke found the software easier to manage than some more expensive, high-end products.

For Burke's purposes - primarily archiving e-mail and basic discovery

Chad Vander Veen  | 

Chad Vander Veen previously served as the editor of FutureStructure, and the associate editor of Government Technology and Public CIO magazines.