The E-Discovery Amendments to the Federal Rules of Civil Procedure and School District IT (document retention systems)

This is the second installment in a series of posts examining the effects of the amendments made to the Federal Rules of Civil Procedure (the "FRCP") in 2006 on technology use in schools.  In the initial post, I provided a broad overview of the discovery process and the role of electronically stored information within it.  This post concerns the role of the IT staff of the school district or school site in e-document management.  Based on the results of additional research, this post also attempts to further explain a misconception identified in the initial post in this series.

 

The e-discovery amendments added several new requirements to the FRCP.  Several of these are directly relevant to school district IT personnel.  First, both Rule 16 (governing initial scheduling conferences with the judge) and Rule 26(f) (governing the parties' initial planning meeting prior to the Rule 16 scheduling conference) were amended in 2006 to expressly require that opposing parties discuss and create plans for the scope and form of discovery of electronically stored information right after litigation begins.  Rule 16 also now explicitly empowers the judge to resolve any conflicts in this area prior to the commencement of discovery.  Second, Rule 26(a) has been amended to require that, prior to discovery, the parties disclose to each other the nature and location of any electronically stored information that each party will use to support its claims or defenses.  These changes require that a school district's lawyers know at least four things: (1) what kinds of electronic information are stored in its systems; (2) the location of this information; (3) the content of this information (or whether the information can be searched by content); and (4) the possibility and likely cost of accessing the information.  This is where school IT people become very valuable to a school district's lawyers. 

 

To begin with, I return to a misconception that I identified in the initial post in this series.  In that post, I stated that school district personnel have mistakenly concluded that the adoption of the e-discovery amendments made it a requirement that all school districts now archive every single bit of electronic data passing through their systems.  This misconception had led many school districts to effectively prohibit the use of essentially non-archivable media, including various Web 2.0 tools like this blog.  I have recently discovered that the source(s) of this misconception and the resulting overreaction at the school district level could have been a few "articles" published by providers of electronic document management services and widely read in the IT community (though not so widely read in the legal community).  I assume that the intentions of these providers were benign, but it appears that, in their quest for new customers, they have allowed their marketing materials to imply (and in one case explicitly state) that all electronic information passing through an orgainization's server must be archived.  Of course, these claims are followed by descriptions of the great archiving and information management services available from these providers.  To clear up any misconceptions generated by these publications or any others, I repeat my statement from my initial post that the FRCP do not independently require the archiving of anything prior to litigation (or at least the reasonable expectation of it).  The FRCP are rules about procedures to be followed by parties and lawyers during litigation.   

 

Does this mean that school district IT personnel can now forget about the FRCP?  Absolutely not.  Does it mean that we can all stop archiving everything?  Not if you want to be smart and proactive.  You see, despite the fact that the FRCP do not require the archiving of every bit of electronic information that comes through your system, if your district is sued, you really must have a clearly defined process for managing your electronic information.  The amendments described above should give you some clue as to why this is so.  For example, the district's lawyers do not want to show up at the scheduling conference before the judge and have to argue that the school district never saves anything.  That argument would be implausible and would probably run counter to at least some substantive laws (such as state laws requiring the retention of student records).  Also, certain archived files may contain confidential student data or similar sensitive information, and IT personnel should be able to apprise the attorneys of the locations of these files, so they can make appropriate objections or seek protective orders to prevent making the information public.  Thus, you should be able to instruct the district's attorneys as to the nature, location, and likely content of the information that the district does store, so the attorneys can participate in their scheduling meetings and make their initial disclosures.  Knowing these facts may be made easier through the use of a private electronic document management service, but it does not follow that you have to employ one of these services to save everything electronic. 

 

Another reason to have a clearly defined electronic document management system that can be explained in clear terms to a judge is because it could provide your district with a defense to a motion for sanctions or a potential contempt citation.  The amendments to Rule 26(b) (governing the scope of discovery) and Rule 37 (providing for sanctions for failure to participate in discovery) provide the reasons.  Rule 26(b) provides that the general scope of discovery extends to any non-privileged information in the custody or control of the party from whom it is requested.  However, Rule 26(b) also limits the scope of discovery of electronic information, providing that a party need not produce such information if the party can show that it is not reasonably accessible due to undue burden or cost.  Having a clearly defined document management system aids in meeting this burden.  Of course, the opposing party can overcome this defense if it can show good cause for needing the information, but courts are more receptive to parties who truly understand their systems and can explain why certain documents are effectively irretrievable.  Similarly, Rule 37 provides a party with a defense to a motion for sanctions for failure to provide requested information if the party can show that the information has been "lost as a result of the routine, good-faith operation of an electronic information system."  Case law has applied this defense to systems set up to delete information that is of a certain age, for example.  IT people can assist the school district's attorneys by being able to (1) explain how the electronic system determines which files to automatically delete; and (2) justify the procedures (for example, by explaining the burdens that retention would place on the system's storage capabilities).  Of course, once a lawsuit is filed or is reasonably anticipated, the school district's attorneys will typically issue what is known as a "legal hold notice," which will require that even routine destruction or deletion of documents cease until further notice.  Thus, even in the absence of a motion for sanctions, IT personnel should have a good handle on what the system automatically deletes and how to stop this process if necessary.

 

The final reason to have a clearly defined document management system arises out of Rule 34 (governing the discovery of electronically stored information specifically).  Rule 34 provides that electronically stored information is discoverable.  It also provides that it must be produced (if relevant, reasonably accessible, and non-privileged) "in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable," unless the parties or the court determine otherwise.  This rule requires of IT personnel that they be familiar with the forms in which all archived materials are maintained.  Much litigation exists over the question of the form of production, and the main reason for this litigation is metadata.  For those readers with little IT background, metadata (which my colleague Dr. Bathon appropriately refers to as "breadcrumbs") consists of information "behind" a visible document, such as the author(s), versions, dates of creation, modifications, uploads, and many other potentially revealing bits of information.  For obvious reasons, producing parties always want to produce information in a sanitized format (e.g., as imaged files with no metadata), while requesting parties always want the data in "native" format (i.e., containing all metadata).  Much money has been spent on these fights.  In litigation, school district IT personnel should be able to assist the district's attorneys by explaining the nature of the metadata in the documents, and this, like all the other functions outlined in this post, requires a clear understanding of the storage mechanisms used in the district.  

 

Hopefully, this very general overview of the IT issues created by the e-discovery amendments will help.  My next post will focus more on the technologies that teachers and principals use every day and the implications that the e-discovery amendments have upon the use of these technologies.

Comments

[Joel]

The problem I have with archival systems, and this is particular to Wisconsin State Statutes is that the we have laws which conflict with one another. They do so in a way that was tolerable on paper, but very difficult when an archival system is laid on top of it.

As an example, we have two types of documents with conflicting schedules. A public record, which in most cases needs to be kept for up to 7 years (longer is OK), and a pupil or behavioral record, which may be kept NO more than 1 year after a student leaves the system (and longer is NOT OK).

In archival systems which keep all, it is entirely possible that "the system" keeps you in compliance with one statute and cause non-compliance in another at the same time.

My issue is that practice such as "keeping all" is arbitrary and ignorant of our state laws. Introducing human judgment into the practice can help, but that also removes that warm, fuzzy safety net of knowing that "the system" is taking care of you and that someone out there is deleting what s/he should not delete.

Any advice on how to land best in the middle?

[Scott Bauries]

Joel,

Thank you for the question. I'll do my best to respond, but remember that I am a law professor, not an IT expert.

My first thought is to inquire as to the meaning of "OK" and "NOT OK." Are sanctions (financial or otherwise) applicable to the individual or district responsible if the first set of records is not stored long enough or the second set is stored too long? If so, it seems that the "human judgment" element should be introduced at the system design stage, where the archival processes can be designed on the front end to treat the two sets of records differently. I'm sure that a system can be programmed to recognize a particular coding on a document and place the document into a path that will lead to automatic deletion after a predetermined time. Then, the only place where human error can affect proper archiving is at the filing/categorizing/coding stage, which is easier to explain in a "good faith" argument.

A more interesting problem to me is the potential state law/federal law conflict. Your state's substantive laws require you to delete student information after one year, but the federal procedural rules (which have the force of federal law) require the production (and therefore non-deletion) of this information if it is relevant to an ongoing suit. The FRCP do not actually require the archiving of anything specific, but the provisions of Rules 26, 34, and 37 can be read to require that student information be retained even after a year has gone by in an ongoing suit, thus putting the district in violation of its state-law obligations.

I would be interested to know whether any of you IT folks have encountered this conflict yet (I'm sure that all of you will soon). It seems that the existence of a federal court order requiring the cessation of automatic destruction of student records would be good enough to keep you out of trouble with the state, but that's just a guess. If not, the district might be forced to allow the deletion to operate and try to defend itself from sanctions using the "good faith operation" defense. A precarious position to be in, to say the least.