This is the third installment in a series of posts concerning the amendments made to the Federal Rules of Civil Procedure (the "FRCP") in 2006, most of which concerned the
discovery of electronically stored information. This installment focuses on the implications that
the e-discovery amendments have on the use of email by school employees, as well as on the saving of documents on local work stations.
It is hard to imagine a school district or university in the industrialized world where email is not widely used. In fact, in most educational institutions, email is the most preferred form of communication because it saves time and paper, and therefore money. The old ways of sharing information among education professionals through paper memos and fliers sent by inter-office mail are rapidly disappearing, and most educators are increasing their email contacts even with students and parents. Most school personnel also have their own computer workstations these days, and the vast majority of these personnel keep at least some electronic documents saved on their hard drives. These recent developments, coupled with the recent e-discovery amendments, give rise to certain issues for educators and school leaders.
The most basic question in the context of this series is: Is information initiated or stored at the local school site discoverable in an action against the district? The basic answer to this question is a resounding "Yes." All information at a district site in within the district and under its "custody or control" (the touchstone of discoverability). Even before the e-discovery amendments, most electronic information was discoverable as "documents" under Rule 34, and subject to the required initial disclosure requirements of Rule 26(a). As of 2006, the initial disclosure requirements of Rule 26(a) explicitly include electronically stored information, such as archived emails and locally stored files. The provisions relating to the scope of discovery in Rule 26(b) also now explicitly mention "electronically stored information." Further, the provisions of Rule 34 (governing categories of information that can be requested in discovery) also now explicitly provide that "electronically stored information" is discoverable. Of course, "electronically stored information" includes literally anything that is stored electronically anywhere in this school district's property, so anything that is either initiated or stored locally at a school site is potentially discoverable in litigation.
How does this work? In most litigation, the parties (sometimes with the intervention of the court) will agree on a "protocol" for obtaining each others' electronically stored information. Generally, email is exchanged through a district-wide server, so the discovery of email is at the same time easier, potentially broader, and possibly more expensive than the discovery of locally stored files. Usually, the parties will agree on some kind of search term (or set of terms), or they will agree to a category of emails (such as all emails in which Principal X is the sender), to limit the information to be produced. Once that occurs, the central system is searched, the emails are reviewed for privilege issues, and they are produced to the other side. If, however, litigation involves allegations relating to documents that might have been stored locally on a single computer's hard drive, the issue can become much more complicated.
You see, every single photon of electronic information that exists in a computer's RAM, even for a second, is stored on the workstation's hard drive (if only for a limited time). This means every Internet site, every version of every document, every pop-up ad, every instant message, etc. When a file is "deleted" from a computer, it still exists there--it is just not recognized as a file. The space that the file occupies on the hard drive now exists for "overwriting," but until it is overwritten, a file remains on the hard drive and can be recovered through complicated activities called "computer forensics" (like CSI, but entirely inside your computer). Also, every file on a computer's hard drive contains "metadata," or information that exists in the file, but which may not be visible when the file is opened. This metadata can include basic information about the document (creator, last date modified, etc.), but it can also include other information potentially useful in litigation, such as whether the file has ever been copied to a thumb drive. Parties often fight about whether a requesting party should be able to view metadata, and the courts of the United States are all over the map as to whether electronic information must be produced with or without metadata. When an adversary believes that a local work station contains information relevant to the action, the adversary often makes a request for the computer itself first. Yes, the actual computer. Usually, this request is viewed as too burdensome (how can you work if your computer is gone?), so the parties agree to have the hard drive "imaged," which means that a computer forensics expert is called in to make an exact copy of the hard drive. Then, the parties fight over whether the requesting party has carte blanche to search the entire imaged drive for useful information (including metadata) or whether the requesting party must request narrower categories of information to be produced from the imaged drive after review by the producing party. Of course, every litigation is different, but this procedure is pretty standard.
So what does this mean for me as a school-site employee? Well, in the most basic sense, most of you will, at some point, have some involvement in litigation by or against your district, even if only your electronic communications and files are truly "involved." Consequently, you would do well to know what your role will be and how you can best prepare for that role if you ever have to fill it. Often, when litigation begins, you will receive what is referred to as a "litigation hold notice." This notice will take the form of a paper memo instructing you to cease any destruction of paper or electronic documents until they can be reviewed. If email is at issue, the notice may ask you to move all of your archived emails into a central folder and refrain from deleting any email until further notice. Sometimes, there will also be a request that you identify the folders in which your emails are stored so they can be exported remotely. There will also always be an instruction that you not delete any file from your hard drive. If you ever receive one of these notices, DO NOT IGNORE IT! Your district could be subject to heavy sanctions if you do. Also, it's not a good idea to start moving files around unless you are specifically instructed to do so. It could create the appearance of impropriety (i.e., an attempt to hide harmful data) once your system is analyzed forensically. Basically, once you receive a hold notice, you should do exactly what it says and no more. Leave your system as it was on the day you received the notice, and do not delete anything that comes onto your system from that date forward.
These suggestions might cause some of you to ask what you should do if you customarily use Web 2.0 tools such as Twitter. As I pointed out in the other two posts in this series, only information within your custody or control (or the custody or control of the school district) is discoverable. It is my understanding that any actual archiving of Web 2.0 material typically occurs at a third-party vendor site, and it would be that third-party vendor's responsibility to save it if it becomes relevant to litigation. If you do host your Web 2.0 content on your system, though, it is likely that you must save it if a litigation hold is issued. Also, if your Web 2.0 tools cause information to be placed into your Temporary Internet Files or some other temporary storage area on your hard drive, you should not actively delete the information because it is in your custody and control. Your school district's attorneys may also want you to disable any automatic "clearing" of the temporary files until further notice.
The foregoing suggestions apply once a hold notice is issued (usually once litigation has begun). You can also take certain actions to make sure that you are prepared for any litigation not yet contemplated. First, be careful not to use your school district's email system to send anything that you would not want to appear on the front page of your local newspaper with your name under it. As a litigator, I have seen all manner of strange, stupid, insulting, and even risque communications and attachments in emails that I have reviewed for production in discovery. Some of these would merely be embarrassing to the sender, but many could embarrass the district, as well. Once something is produced in discovery, it has the potential of becoming part of the public record in the case. Think about that.
Also, remember that a request for email typically includes not only the email itself, but all emails in the same "trail" of emails, as well as all attachments to all emails in the trail. The more attachments that emails have, the more fighting that will occur as to the "form" of production, and the more attorney time (and therefore school district money) will be required for document review. Of course, we all must use attachments at times, but some people go way overboard, causing substantial amounts of money to be spent in e-document review in later litigation. One particularly money-wasting practice is to include in all of your emails some kind of graphic signature or avatar of yourself. This may seem cute, but each of those graphic images becomes one or more "attachments" to your email when it is being reviewed for production in discovery (at least if your district uses one of the more common review programs, such as Summation), and these attachments are often indistinguishable from other files that may contain scanned legal documents or other relevant data. In practical terms, let's say that your system has 1,000 emails in which you are identified as the "sender" (not far-fetched at all today). Let's also say that you have your email preferences set up so that, every time you send an email, the system "signs" it for you, and that this "signature contains a graphic version of your name (e.g., bubble letters) and an avatar (e.g., a frog or something). Now, instead of 1,000 files to review, the attorney has 3,000--and those are just your emails. Attorneys charge by the hour . . .
As to your locally-saved documents on your hard drive, the best suggestion that I can make is, to the greatest extent possible, keep all information saved on your workstation strictly professional. Of course, family pictures and other such material may not cause any problems in litigation (other than the money spent on attorney time in reviewing them for production), but it is a good practice to limit the amount of personal material as much as possible, particularly if that personal material could be viewed as embarrassing to the district or school (or even to yourself). Above all, be very careful about storing student information on your workstation. For example, if you use some kind of locally stored grading program (or even an Excel spreadsheet) with individually identifying information on it, you should be aware that the school's attorneys need to know of its existence very early if your work station has been requested in discovery. Often, this will allow the attorneys to make a timely and proper objection to production based on confidentiality, and you will have helped them immensely.
Of course, I am just scratching the surface here, and I do not mean to make the e-discovery process sound unduly scary. For the most part, e-discovery has improved the litigation process, but we all must be aware that this new area of law is both relevant to our daily work lives and far from clearly defined. My final post in this series will address an open question on conflicts between the FRCP and state law.
Justin Bathon on 
