Federal court rules trigger new requirements for electronic information stored by government.
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
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
- such software is probably enough. However, a 2007 Gartner study found that the Mimosa software lacked the functionality and capability of a comprehensive e-discovery solution. According to the study, Mimosa is recommended, but users should note that it's "mainly an e-mail archiving system" and users will "need other vendors to complete their e-discovery functions." Offerings from vendors, such as Guidance and Symantec, give more complete tools that reach into the deepest corners of a network to find and preserve data. These tools also work better with multiple file formats. However, these solutions tend to be more expensive than entry-level products.
The point is agencies must find what fits their specific e-discovery needs. There is no one-size-fits-all solution. There's plenty of help available, though. Cornell University offered staff three simple rules for responding to e-discovery requests: hold, preserve and search. They can also easily apply to the public sector.
Hold: Take the technical steps necessary to ensure that normal business practices, such as backup tape recycling and other data purging processes, as well as individuals deleting e-mail, are not interrupted so as not to lose data.
Preserve: Take a snapshot of electronic data to store and preserve in case of search requests.
Search: Execute keyword and timeframe searches on preserved data to discover all documents relevant to lawsuits, including searches explicitly requested by plaintiffs.
These rules may not constitute the perfect e-discovery solution, but they're a good place to start.