Agencies may need to engage in e-discovery for various reasons. It could be litigious in nature - a former employee files a harassment suit - or it simply could be that an e-mail or instant message contained information that needs to be recovered. However, digital documents come with an inherent problem. They are far easier to create and dispose of than their paper counterparts.
In Texas, the OAG produced a sizable document covering policies and best practices for e-discovery. The federal rule changes mean electronic documents are now subject to the same scrutiny and discoverability criteria as paper documents. This means two things: First, government agencies in Texas - and everywhere else - need a plan to manage electronically stored information. Second, electronically stored information needs to be preserved in case it needs to be retrieved.
But just as litigation is largely responsible for the failure of the "paperless office" dream, e-discovery rules themselves can be burdens.
"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.
"When you create an e-mail and it is substantive in nature as opposed to transitory, like 'we're having a birthday party tomorrow,' a substantive document [should be] identified and categorized in such a way that it is properly stored and then archived so it can be retrieved in accordance with state records retention laws and rules, and also can be retrieved and produced should it become part of litigation."
In February, at the annual CIO Academy in Sacramento, Calif., dozens of public-sector IT professionals gathered to discuss the latest issues. A well attended session on e-discovery highlighted just how much confusion there is. Many of those at the top of their field were at a loss when it came to 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 source can be considered electronically stored information (ESI), according to the Federal Rules of Civil Procedure. ESI is the data that's sought by an attorney when the attorney initiates an e-discovery request. That's why Tom Greene, special assistant attorney general for the California Office of the Attorney General, insisted government IT must partner with the state's 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."
That means attorneys meet and discuss what documents they want the other party to produce. For state and local government agencies that lack a comprehensive electronic document management strategy, this immediately gives the plaintiff an upper hand.
"E-mail is really a wonderful thing. It is, from a plaintiff's perspective, the gift that keeps on giving," said Greene. "The new [federal] rules require that the plaintiff gets to say how the stuff comes to them. More and more, people want information produced in its original format, or close to it."
A majority of government agencies are still grappling with basic issues such as document storage capacity. There aren't many who are working on assuring data is preserved in its