EDiscovery and Your School: Critical Considerations in Handling Electronic Information

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• E-Discovery and Your School Critical
  Considerations in Handling Electronic Information

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ELECTRONIC DISCOVERY

• ESI Electronically Stored Information
• Amended Federal Rules of Civil Procedure
• Pre-Litigation Steps
• Post-Litigation Steps
• Concluding Remarks and Recommendations

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What Is Electronic Information

• Electronically stored information or ESI is any
  type of electronic documents or data.
• Any information created, stored or best utilized
  with computer technology of any type.
• American Bar Association

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The Expanding Electronic Workplace

• In 2002, over 88 million American workers had
  access to and used e-mail in the workplace.
• Today, a large school system can be expected to
  generate thousands of emails daily.
• Growing percent of school-related communication
  between staff, between staff and students, and
  between students is through email.
• Most records and information for school systems
  are stored electronically.
• Almost every classroom has at least one computer.
• Estimated that less than 3 of electronic
  information is converted to paper.

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Types of Electronic Documents and Data
Potentially Subject to Electronic Discovery

• E-mail (including attachments)
• May even include personal email accounts
• Word processing documents
• Spreadsheets
• Presentation documents
• Voicemail
• Text Messages
• Images
• Audio, video and A-V recordings

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Sources of Electronic Documents and Data
Potentially Subject to Electronic Discovery

• Databases
• Networks
• Computer systems, including legacy systems
  (hardware and software
• Servers (network, departmental, e-mail, fax,
  etc.)
• Archives
• Back-up or disaster recovery systems
• Tapes, discs, hard drives, zip drives, jump
  drives, and other storage media
• Cell phones and PDAs
• .mp3 files

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And Still More Sources of Electronic Data
Potentially Subject to Electronic Discovery

• Business and Home Computers
• Metadata
• Internet and Intranet Data, including ISPs
• Handheld wireless devices
• Paging Devices
• Voicemail systems

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Why Schools May Get In Trouble

• Volume and Accessibility
• The sheer volume of ESI may be the most daunting
  aspect of handling ESI, particularly in the
  context of litigation.
• Replication Rather than moving data from one
  place to another, computer systems typically copy
  the information, so that a single piece of data
  appears at several locations at once.
• Deletion a misnomer Hitting the delete key
  can temporarily hide information, but the data is
  still present, usually in some recoverable form.
• Ancillary Information Storing information in
  electronic form necessitates the creation of
  metadata to manage it.
• Legacy data Remnants of rapidly-outdated
  systems and applications remain behind, even
  after they are functionally obsolete.

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More Trouble

• Too Much Autonomy
• ESI handled differently at each school
• Practices and habits of teachers vary
  dramatically
• Too little communication between IT, front-line
  school administrators, teachers and staff
• Lack of written policies to ensure consistency
  and compliance

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More Trouble

• Lack of Education
• Little to no training regarding appropriate and
  acceptable use of the school districts
  technology.
• Lack of appreciation of the scope of electronic
  information that may be subject to production.
• Failure to recognize the significance of treating
  electronic communications with same level of care
  and concern as written communications.
• Failure to appreciate the risks associated with
  using the school districts system for personal
  communication or other reasons not related to
  school district business.

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Risks and Costs of Failing to Prepare Now for
E-Discovery Down the Road

• Embarrassing/damaging information that should
  have been purged is retained and produced
• Increased costs of compliance with discovery
  requests
• Relevant data is not retained
• Lost opportunities
• Sanctions for spoliation/destruction
• Monetary Sanctions
• Adverse inference instruction or other ruling
  against interest
• Potential criminal penalties associated with
  government investigations or audits

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Amended Federal Rules of Civil Procedure

• Rule 26(a)(1)(B) now explicitly requires
  electronically stored information to be among a
  partys initial disclosures, and Rule 26(f)(3)
  will incorporate such information as part of the
  initial discovery conference.
• Rule 26(b)(2) amendment addresses accessibility
  issues such as
• If ESI is not reasonably accessible without
  incurring undue costs and burdens, then that
  information is presumptively outside the scope of
  discovery.
• Must identify inaccessible sources.
• Even if the information is not reasonably
  accessible, that does not necessarily relieve a
  party of its duty to preserve the ESI.

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Amended Rule 34

• Rule 34(a) is amended to place the phrase
  electronically stored information on equal
  footing with documents.
• Rule 34(b) is amended to address format issues.
• Requesting party is encouraged to state a
  preferred form of production within its request
  the responding party will have an opportunity to
  object to the form requested.
• If no preference is stated in the request, the
  default presumption for ESI will be in the form
  in which it is ordinarily maintained, or . . .
  forms that are reasonably usable.

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Amended Rule 37

• Rule 37(f) Electronically stored information.
  Absent exceptional circumstances, a court may not
  impose sanctions under these rules on a party for
  failing to provide electronically stored
  information lost as a result of the routine,
  good-faith operation of an electronic information
  system.
• This amendment is an attempt to provide a safe
  harbor for the unintentional destruction of
  evidence that may occur due to the nature of the
  systems. This means that school districts should
  implement a robust electronic document retention
  program.

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Pre-Litigation Steps What Should the School
District Do Before a Lawsuit is Filed
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Electronic Information Retention Policy

• Goals
• Lessen likelihood that employees will retain
  significant volumes of electronic documents when
  there is no business or legal reason to do so.
• Ensure that the school district maintains
  information it is required by law to retain.
• Enable school district to quickly identify and
  isolate potentially relevant documents in the
  event of litigation.
• Enable the school district to immediately provide
  counsel with critical computer systems
  information.
• Enable the district to quickly and effectively
  implement a litigation hold.
• Provide safe harbor protection for nonproduction
  or deletion of information.

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Developing the Electronic Information Retention
Policy

• Identify
• What type of electronic information is generated
  in your school system
• Where the electronic information is stored
• How the electronic information is stored
• Who, within each of your separate schools and
  administrative offices, is best suited to provide
  information concerning each of the above

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Developing the Electronic Information Retention
Policy

• Make the policy realistic, practical and tailored
  to the school district.
• Inventory, categorize and catalog all types of
  electronic information and data storage
  locations.
• Develop document destruction schedules based on
  document types, legal requirements and school
  district needs.
• Designate someone to oversee implementation and
  to serve as a record custodian.
• Educate all employees on the school districts
  retention and destruction policies.
• Provide guidance to employees regarding
  identification and preservation of information
• Provide continuing education

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Developing the Electronic Information Retention
Policy

• Develop a storage media policy
• Develop procedure to audit and monitor the
  effectiveness of the policy
• Develop enforcement procedures
• Document the reasons for the establishment and
  implementation of the policy

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Electronic Discovery Response Plan

• Goals
• Be prepared to quickly provide counsel with
  critical systems information to use in discovery
  conference.
• Be prepared to institute a litigation hold and
  suspend further deletion of relevant information.
• Be able to quickly identify, collect, and produce
  relevant information.
• Have a plan in place to notify and remind all
  necessary employees regarding their obligations
  to preserve data throughout litigation

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The Litigation Hold
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Developing the Litigation Hold Policy

• Considerations
• Obligation to preserve records is triggered when
  a school district
• Learns of pending litigation against it
• Reasonably anticipates litigation or
• Is put on notice that litigation is imminent
• Must preserve information that
• Relevant to the action or dispute
• Subject of a discovery request or reasonably
  likely to be requested during discovery
• Is reasonably calculated to lead to the discovery
  of admissible evidence

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Developing the Litigation Hold Policy

• Establish Procedures
• Identify individuals with authority and
  responsibility to implement litigation hold and
  suspend normal destruction procedures (e.g.,
  principals, asst. principals, IT managers, etc.).
• Detail process for suspending routine information
  destruction
• Detail process for identifying all employees and
  third parties who may have relevant information.
• Ensure periodic communication and notice of
  litigation hold to all necessary employees (one
  time notice is probably not enough).
• Document steps taken to effectuate litigation
  hold.
• Take control of data and ensure that data is
  segregated in a safe location (mindful of the
  issue of metadata).

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Being Prepared to Respond to E-Discovery
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Being Prepared to Respond to E-Discovery

• Identify
• What type of electronic information is generated
  in your school system
• Where the electronic information is stored
• How the electronic information is stored
• Who, within each of your separate schools and
  administrative offices, is responsible for the
  electronic information

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Being Prepared to Respond to E-Discovery

• Establish Procedures
• Know how and where information relevant to action
  will be assembled, stored and produced.
• Have information systems and data storage devices
  mapped in advance to facilitate locating relevant
  information quickly.
• When dealing with large amounts of information,
  it may be necessary to secure the services of an
  outside vendor (do your homework on potential
  vendors in advance).
• Be prepared to discuss with counsel the issues of
  accessibility and manner of producing electronic
  information.

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Post-Litigation Steps What Should the School
District Do After a Lawsuit is Filed
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Implement Your E-Discovery Response Plan

• Immediately implement litigation hold
• Document implementation of litigation hold and
  keep copies of written notices (or preservation
  letter) sent to employees and third parties
• Assemble a response team
• Identify individuals likely to possess responsive
  information
• Define relevant time period
• Determine what is reasonably accessible

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Implement Your E-Discovery Response Plan

• Inventory hardware and software
• Provide instructions for the assembly and storing
  of information
• Consider imaging hard drives of key players
• Determine protocol for reviewing documents for
  relevancy and privilege
• Document chain of custody information

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The End