Agencies must prepare for e-discovery, experts say

As government communication becomes more electronic and subject to legal review, the key to avoiding trouble is improving communication among agencies' legal departments, information technology professionals and record managers, said a group of government and private lawyers who gave a presentation about e-discovery Aug. 14.

In December 2006, a change to the Federal Rules of Civil Procedure expanded the kinds of documents that an organization might be asked to produce in a lawsuit's discovery phase to include electronically stored information. That means agencies can expect to face consistent inquiries from judges about e-mail messages, wikis and instant messages, and failure to present them could have negative results.

'Judges want to see people who are upfront,' said Jonathan Redgrave, editor in chief of 'The Sedona Principles,' at the conference. 'The Sedona Principles' is a book of best practices for managing electronic document production and records with e-discovery in mind.

Judges want to see that there was a plan and a review process, there was due diligence and actions were taken in good faith, Redgrave added.

Along those lines, the Interior Department's General Law Division has established e-discovery teams of lawyers, IT professionals and record managers to serve as a first point of reference, said Rachel Spector, a senior attorney in the department, at the conference.

Presenters at the conference, which was sponsored by the CIO Council and the General Service Administration's Office of Technology Strategy, also referenced high-profile cases in the private sector in which failure to maintain or coordinate electronic recordkeeping strategies has caused people to lose their jobs and companies to pay massive fines and in some cases fold.
Agencies, which typically have less funding than private companies, are facing a tough balancing act in designing their electronic records management systems to be efficient and best prepare for the e-discovery enquiries with limited budgets. They are also grappling with issues of how much and what types of metadata ' or data describing the records ' they should keep to protect themselves.

'Anything is fair game in [electronically stored information] in the e-discovery world,' Jason Baron, director of litigation at the National Archives and Records Administration, told the crowd of mostly information technology personnel. 'You deploy any of this stuff on a desktop, and it's a field of dreams ' you deploy it, [and] the lawyers show up.'

About the Author

Ben Bain is a reporter for Federal Computer Week.

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