Texas Attorney General's Office managing changes to the Federal Rules of Civil Procedure.
State and local governments are routinely confronted with new and complex challenges. Be it a technology change 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.
For years, government agencies have dreamed of a paperless office. While no one is there yet, strides have been made toward that reality. But with a paperless existence comes a new problem - what to do with billions of bits' worth of digital documents. This is the challenge of e-discovery.
Though e-discovery could conceivably describe any effort to find electronic versions of documents, it's most often associated with legal proceedings, such as retrieving documents as part of litigation. Considering how quickly today's incident can escalate into tomorrow's court case, government agencies should be aware of what's out there to help tackle e-discovery requests.
What Is It?
On the surface, electronic discovery means exactly what it sounds like: discovering data electronically. It's what you used to do with paper, only electronically. But e-discovery is much more than that.
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 likely request documents that may only exist in electronic form. In the past, if correspondence was requested, an organization would try to produce all the relevant memos and letters employees had written. Instead of instant messages, you rounded up all the sticky notes in your office. Now, many of those documents exist electronically.
On Dec. 1, 2006, amendments were made to the Federal Rules of Civil Procedure, including changes mandating that electronic documents in federal court are to be treated, legally speaking, the same as paper documents. The rules govern how federal courts deal with discovery requests in civil proceedings. It's important for state and local governments to be aware of them because state and local courts generally reflect federal court practices. That's where the amended rules come in - they're part of an effort to eliminate a lot of uncertainty surrounding e-discovery.
Texas, like some other states, proactively changed its procedures prior to the federal rule amendments. David Halpern, the assistant attorney general at the Texas Office of Attorney General (OAG), said that 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 the state of 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 have 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."
Texas isn't alone in its proactive policy toward e-discovery. Several states and organizations are actively becoming educated or implementing e-discovery solutions. The National Association of State Chief Information Officers (NASCIO) recently made available its report on how CIOs should approach e-discovery.
More than 95 percent of a typical agency's documents are now electronic, according to Washington state CIO Gary Robinson, chair of the NASCIO committee on e-Records Management and Digital Preservation. That means an agency that's involved in litigation will almost certainly have to produce digital documents.
"One of the specific new areas 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 being responsive to e-discovery rules that were recently adopted by the federal courts," he said.
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
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."