original format. Storing electronic documents (i.e., e-mail) can be challenging enough because some e-mails contain attachments, which often results in multiple copies of the same document being stored.
Several factors make developing an e-discovery strategy seem daunting. As the CIO Academy session panel repeatedly said, an agency should be prepared to distinguish between documents that are simply government records and those that potentially may be used as evidence. How are IT folks supposed to know how to do this? They aren't, really, which is why the second call to action was the aforementioned partnering with in-house counsel.
Besides teaming up with in-house counsel, agency officials ought to be actively working to educate employees about e-discovery and the impact the creation of electronic documents could potentially have.
"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 the face of a public records request or in litigation."
It's critical, Halpern said, to educate employees so they ditch the common misconception that backup tapes for disaster recovery are actually backup tapes for finding e-mails.
"We know how time and labor intensive it can be to try to ferret out information from the vast amount of data that would exist on a backup tape," he said. "We go to our IT people and they shrug their shoulders and say, 'You're asking me to look for a needle in a haystack.' Nobody is happy and it may not be successful. It's far better, at the front end, to treat electronic data - that should be treated as a state record - as a pen and paper [document] that is marked, identified and preserved. Then it should be far less onerous to retrieve anything that becomes the subject of a request."
Is There a Solution?
Is there a single solution for e-discovery? The answer, unfortunately, is no. But there are a number of 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 put in place by the federal courts."
Still in its early stages, Washington Vault is currently limited to the management of e-mail. The system uses a contextual search feature that allows agency staff to retrieve e-mails based on keywords. Robinson talked of plans to expand the program to encompass other electronic documents, such as instant messaging.
There are off-the-shelf document management solutions as well, including products from IBM, Symantec, CA and EMC. The trouble is they cost money. In today's lean budget environments, procuring these products may not be viable.
"I think there are a lot of companies out there implementing things like Enterprise Vault from Symantec, and similar products," said Joe Meckes, an attorney and partner at San Francisco-based Squire, Sanders and Dempsey, a firm with a dedicated, 15-member e-discovery task force. "At a private client, or a private-sector company, they're looking at their legal budgets and seeing how much the e-discovery is seeming to cost nowadays, and making these decisions proactively," he said.
"I just don't think in the public sector you are seeing that same type of reaction, or even if you're seeing the reaction internally at the public-sector entity. It's not the kind of thing that you can just come out of pocket, $150,000 to $200,000 or more, and make those kinds of purchases. For a big company, purchasing [Symantec] Enterprise Vault is $1 million or more."
Even though the Federal Rules of Civil Procedure seem to levy harsh penalties on agencies that can't respond to discovery requests, the news isn't all grim. If an agency can show that a pertinent document was destroyed as part of its routine business processes, the court could uphold an agency's claim the requested document can't be produced.
This exception, referred to as Shallow Safe Harbor, requires the court to make sure document destruction is routine. If it does, basically the court can then say, "We understand that's how it goes sometimes."