The Recent E-Discovery Amendments to the Federal Rules of Civil Procedure and Communicative Technologies in School Districts (Intro)

Hello to all readers of The Edjurist. I want to thank my colleague, Justin Bathon, for allowing me to share my ideas as a contributor to this forum. My first set of posts is partly inspired by an online discussion (see comments) that Justin forwarded to me. The discussion at Wes Fryer's blog in part concerned the implications that the December 2006 e-discovery amendments to the Federal Rules of Civil Procedure (FRCP) have upon technology use in the schools, particularly Web 2.0 tools such as blogs, wikis, podcasts, Wimba, social networking sites, and microblogs.

In reading this limited exchange, it occurred to me that the issues generated by the recent amendments may have caught some school district officials off guard and could have caused them to form misconceptions about the import of the changes, so I have designed this series of posts to offer both a basic primer on the most important changes made in 2006 to the FRCP, as well as some thoughts as to how these changes affect the daily work of school officials. The Honorable Lee Rosenthal has already introduced a seven-part overview of the amendments themselves in the Yale Law journal Pocket Part, and I do not seek to duplicate his efforts here. My purposes here are instead to (1) demystify the discovery process, as well as the recent changes made to it concerning the treatment of electronic information, for education practitioners; and (2) offer some thoughts as to how school leaders and teachers might approach their jobs with the amendments in mind.

The provisions of the FRCP that are the subject of this series of posts mainly focus on discovery issues. For those with little to no legal background, discovery is a term that we use to describe the various means by which opposing parties in litigation (and sometimes third parties) can be required to share information (potential evidence) with each other. The FRCP governing discovery do not explicitly regulate any activities that occur prior to the onset (or at least the imminence) of litigation. Once litigation has begun, though, the discovery rules govern, among other things, (1) the information that must automatically be shared with an adversary; (2) the information that may be requested from an adversary; (3) the information that may be withheld from an adversary; (4) the procedures for requesting and withholding information; and (5) the consequences of overreach in seeking or withholding information.

The FRCP amendments adopted in December 2006 mainly altered the existing discovery rules by introducing explicit provisions governing the treatment of “electronically stored information” throughout the litigation process. Most refer to these provisions, among others, as “the e-discovery amendments.” I will address the implications of the specific changes to each of the rules in future posts, but I want to use this introductory post to address the general discovery process and the role of electronically stored information within it.

To begin with, the discovery process does not actually commence until a complaint is filed (or at least until such time as a potential school district defendant reasonably anticipates that it will be sued for some specific thing). Does this mean that discovery is irrelevant until litigation is imminent? Absolutely not. It is a very common practice for companies and governmental entities to design many aspects of their organizations with the prospect of eventual suit and discovery in mind. For example, a district may design its paper filing systems to facilitate easy retrieval and review of relevant information. Or a school may have the practice of creating transcripts or other records of all parent-teacher-student meetings. Each of these actions, however, is a business decision. That is, the action is not compelled by law, even though the action may be advisable considering the litigious nature of our society.

Further, the discovery rules—as they relate to opposing parties in litigation—only apply to information that is in the possession or control of a party. If a school district or employee once had possession or control of certain information, but the information either no longer exists or is now in the possession or control of someone else, then the district or employee cannot be required to produce the information to an adversary in litigation and cannot be punished for the failure to produce it, with one very important exception. If the district or employee no longer possesses the information because the information has been negligently or intentionally destroyed as a direct response to the fact or prospect of litigation, then sanctions can result.

Finally, until recently, electronically stored information has always been treated similarly to physical documents in discovery. That is, a request for, say, emails on a specific topic or authored by a specific individual has always been reviewed and evaluated as though it were a request for physical paper memos or letters. However, as the legal community came to understand the nature of electronically stored information and to use it more frequently in litigation, it became clear that the existing rules were inadequate in dealing with such information. Recognizing this problem, the e-discovery amendments introduced some specific procedures and safeguards relating to the treatment of electronic information. However, the fact remains that electronic information consists essentially of "documents and things," just not in a physical format.

With these concepts in mind, it would be best to first explain what the e-discovery amendments did not do. As I mentioned above, the e-discovery amendments for the first time introduced into the FRCP explicit provisions regulating the disclosure and production of electronically stored information. Since then, a misconception has developed among some public education practitioners that institutions using such information must therefore now archive all electronic information in case it is later needed in discovery, despite their prior practices and despite the lack of any anticipated litigation concerning the information in question. No such independent duty was created by any of the e-discovery amendments adopted in 2006, and no such duty exists anywhere else in the FRCP (although state education laws or administrative codes may require otherwise). As I will explain further in a future post, under the FRCP, an institution may be required to halt the routine destruction of electronically stored information once litigation has begun, but outside that limited circumstance, the e-discovery amendments do not require the archiving of any electronic information not previously stored.

As to the use of Web 2.0 technologies in education, then, it is unlikely that the e-discovery amendments will reach much of this information because, if it is stored at all, it is usually stored by a third party, such as a blog hosting site (and is therefore in that party’s possession and control, rather than the district’s). As to the use of other electronic communicative technologies, such as email, the amendments clearly apply, and the remaining posts in this series will address the specific changes that were made to the FRCP and how they impact the daily work of education practitioners and leaders who use these technologies.

Comments

[Wesley Fryer]

Thanks so much for this post and these clarifications, Scott. I posted on this to my blog tonight. I hope your perspectives will help clear up some misconceptions for school district leaders who are over-filtering web 2.0 sites from teachers and students based on a misunderstanding of FRCP requirements.