RISK MANAGEMENT BEST PRACTICES GROUP INSURANCE POOL 13 – “eDISCOVERY” BENCHMARK FOR THE MEASURE eDiscovery has become a trademark of our digital age. eDiscovery refers to the discovery in civil litigation dealing with the exchange of electronically stored information (ESI). When an entity is placed on notice of a lawsuit they need to have a MABE’S INSURANCE PROGRAMS – RISK MANAGEMENT 621 Ridgely Ave Suite 300, Annapolis MD 21401 [email protected]- [email protected]- 410-841-5414
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RISK MANAGEMENT BEST PRACTICES
GROUP INSURANCE POOL 13 – “eDISCOVERY”
BENCHMARK FOR THE MEASURE
eDiscovery has become a trademark of our digital age. eDiscovery refers to the discovery in civil litigation dealing with the exchange of electronically stored information (ESI). When an entity is placed on notice of a lawsuit they need to have a process in place to be able to provide related documents in question, and in an unaltered form. To accomplish this, a “Legal Hold” may be required to prevent “spoliation”, or manipulation or destruction of the related electronic data that relates to the case. Any electronic data relevant to a lawsuit can be part of a legal hold. This can
include texts, email, IM chats, documents, voicemails, databases, and websites. All can be discoverable. Amendments to the Federal Rules of Civil Procedure (FRCP) created rules for electronic records that went into effect on December 1st, 2006. Organizations have a duty to preserve data when litigation is reasonably anticipated (at the earliest) and when litigation has begun (at the latest).
The basic legal framework for electronic discovery under FRCP Rule 34 permits parties to request and produce relevant electronically stored information as it is “ordinarily maintained” or a “reasonably usable” format. A requesting party must use good faith efforts to identify all discoverable information, paper and electronic, and to inform opposing counsel when data is
available for production in electronic form. Mishandling ESI has led to an increasing number of sanctions in U.S. federal courts. According to the Duke Law Journal, more than half of federal cases involving eDiscovery resulted in sanctions between 2004 and 2010
For public schools the costs of retrieving such ESI, placing it in a legal hold, and making it available as part of a lawsuit can be expensive to perform, and is part of the defense costs of a claim, typically not limited by the insurance coverage’s provided. Recommended student record retention rules typically establish a time period of 4 years past the age of majority of a student. So for a current pre-school student age 4, records may need to be retained for 22 years.
Looking at the explosion of information that is now kept electronically, it is a challenge to keep up with the changing environment we work within. One study cited by KPMG stated that internal corporate communications is growing at 30% per year, and is being stored on more and more varied devices, tablets, laptops, desktops, servers, and handheld smart phones. This growth is defined by Moore’s Law that states that the number of transistors that can be placed inexpensively on an integrated circuit doubles every two years. Some studies indicate that 90% of all documents generated today are now electronic. The blending of personal and business lives through social networking is a new phenomenon that public schools have not had to deal with in the past.
In addition to the explosion of computing hardware, software, data, and electronic communications, has been the increase in legal firms specializing in eDiscovery. Larger companies are beginning to handle eDiscovery issues internally, with mid and small organizations looking to outside specialists in most cases. A critical aspect of an effective eDiscovery policy is for a school systems Technology Department to work directly with Legal Counsel and Risk Management to insure that electronic records are being protected, policies are developed and followed, and employees are trained in what actions they need to take and under what circumstances. This is more easily done with House Counsel. If a system relies on outside counsel for legal advice, there may be a cost associated with the
advice from a contracted third party. eDiscovery is a specialized area and there may be cases where outside counsel will be warranted.
The following is taken from the UE Roundtable on eDiscovery:
Litigation takes time and expends resources, especially when electronic discovery (e-discovery) is involved. E-discovery is the process by which the sides in a lawsuit obtain relevant electronic records from each other. Although e-discovery is increasingly common, it can seem daunting. Inadequate preparation can cause legal headaches, drain information technology (IT) resources, and require the use of expensive consulting firms to manage the process. There is also the risk of court sanctions for failure to preserve electronic information once potential litigation becomes foreseeable.
Technology Managers have no procedures to segregate specific records and place them in a “legal hold”
the issues and has directed the IT manager of eDiscovery needs.
System identified a need for record retention and has assigned this responsibility to the Technology Manager.
Technology Manager enacts legal holds at the direction of Counsel after receiving a lawsuit that requests related documents.
Policies and training are informal for the most part, with the majority of discussions taking place at the highest
House Counsel and Risk Management have attended continuing education sessions on eDiscovery, but have not worked together with the Technology Manager to identify gaps in the program.
Employee training is
Technology Director, House Counsel, and Risk Manager worked together to develop “eDiscovery” and record retention policies.
All employees are provided basic training in electronic data
There is no long term record retention process established with the State archivist.
Counsel notifies IT when they are in need of discoverable data with little warning.
IT has an effective back up plan in place.
Process for segregating data for a legal hold are unclear.
levels within the organization.
There are many opportunities for errors in the holding of data. Some data is compromised, and not protected.
in place, but can be improved.
System identified a representative to attend the MABE LSA’s record retention working group, and has worked with the Archivist to institute effective policies.
management. There are clear data retention and storage practices in place. There are well known triggers in place to initiate a legal hold.
There are policies on how long data and their types needs to be retained. There is an effective and accepted
http://www.law.com/jsp/lawtechnologynews/e_discovery.jsp - Law Technology News publication on eDiscovery
http://www.fjc.gov/public/home.nsf/autoframe?openform&url_l=/public/home.nsf/inavgeneral?openpage&url_r=/public/home.nsf/pages/196 - Federal Judicial Center materials on eDiscovery
This was a new measure in FY12, and was the first year we asked for feedback. The following was provided by Baltimore
o Discuss your digital records retention and protection processes.____________________________________________________________________________
eDiscovery is covered under the BCPS Law Office ESI procedures. The procedures are attached as a reference. BCPS utilizes Symantec’s Enterprise Vault as the technology for
compliance with ESI requests. Once Law Office is notified of any pending or potential legal action, a written notification is sent to the Department of Technology to place the appropriate personnel’s email account into an archiving mode. This archiving mode utilizing the Symantec Enterprise Vault will allow the Law Office to access the personnel’s emails for the past 90 days and any time after the account has been placed into the archive.
o Discuss your process for implementing each phase of a Legal Hold Notice of electronically stored information (ESI) when a legal suit is anticipated (Hold Notification, Segregated Repository for ESI, Ongoing Preservation Obligation)
a. Transitory – delete after intended purpose has been served; automatically deleted* after 90 days (Example – email about a meeting date and time; delete after the meeting has been held).
b. Student – unless otherwise required by the Records Retention Schedule save on BCPS server or desktop, automatically deleted* after 90 days.
c. Business – unless otherwise required by the Records Retention Schedule save on BCPS server or desktop, automatically deleted* after 90 days.
2. General Correspondence – follow Records Retention Schedule for respective department/office, may be saved electronically on BCPS server or desktop or may be printed out and kept as a hard copy.
3. Reports – reports of a general transitory nature are recommended for deletion on June 30th of every year.
7. Charts – charts of a general transitory nature are recommended for deletion on June 30th of every year.
8. School documents - follow Records Retention Schedule for respective department/office, may be saved electronically on BCPS server or desktop or may be printed out and kept as a hard copy.
9. Student Records – follow Records Retention Schedule for respective department/office, may be saved electronically on BCPS server or desktop or may be printed out and kept as a hard copy.
10.Voicemail – maintain until intended purpose has been served, then delete; delete after 30 days.
* = deletion is 90 days from date document is created.
Introduction In this digital age, most businesses, including school systems, employ electronic means as their preferred method of communication. Electronic mail has largely displaced postal mail, phone calls and facsimiles in the corporate
world. Indeed, many documents are never reduced to an analog, or paper, form. As a result, in December 2006, the federal courts revised their rules dealing with the disclosure and retention of electronic documents, also known as “electronically stored information.” According to the local protocol for Maryland’s courts, ESI is not limited to email and could include:
e-mail and attachments, word processing documents, spreadsheets, graphics and presentation documents, images, text files, hard drives, databases, instant messages, transaction logs, audio and video files, voicemail, Internet data, computer logs,
text messages, or back up materials, Native files. . . metadata, deleted data or fragmented data.
The procedure that follows governs how Baltimore County Public Schools (“BCPS”) employees must respond to ESI once litigation is an issue, and how the system will retain certain electronic information. Please familiarize yourself with these procedures, as the system’s failure to respond appropriately can result in significant legal exposure for BCPS. Should you have any questions, do not hesitate to contact the Office of Law at extension 4060.
1. How long must I retain my electronic mail? The type of e-mail you write determines how long it should be retained.
(Refer to “Electronic Document Retention Guidelines”). On a rolling basis, after 90 days e-mail will be automatically deleted from e-mail servers system wide. E-mail can be classified as transitory, a student record, or a business record.
A transitory e-mail is an e-mail that requires a particular task to be completed or provides notice of information. (See e-mail categories below).
Student records are records that are directly related to a student and maintained by an educational agency or institution or by a party acting for
the agency or institution. Therefore, e-mail that is related to or that references a student is considered a student record.
Please note that not all e-mail that references a student should be maintained as a student record. Many times e-mail sent during the course of the day may be better identified as transitory. If it is transitory it should be deleted as soon as it is no longer needed.
However, if you determine that an e-mail concerning a student addresses student achievement or instructional practices, it should be printed out, placed in the student record and retained in accordance with the Maryland Student Records System Manual. Otherwise, it will be deleted
from the system after 90 days. (See e-mail categories below). Other e-mail that is necessary to maintain for audit purposes or is utilized to track the history of a business routine (example, history regarding a contract) should be maintained in accordance with your school/department/office’s practices, or in accordance with the school system’s Records Retention Schedule. (See e-mail categories below). E-mail Categories:
Transitory – Records relating to agency activities that have temporary value and do not need to be retained once their intended purpose has
been fulfilled. (Michigan Department of History, Arts and Libraries, Records Management Services Electronic Mail Retention Guidelines) EXAMPLE: To: Paul From: Rick Date: March 18, 2007 Subject: Supplies I noticed that the supply cabinet is out of red ink pens. Please order more. Thanks.
Student – Records that are directly related to a student and maintained by an educational agency or institution or by a party acting for the agency or institution. COMAR 13A.08.02.03.
EXAMPLE: To: Mr. Joseph, Math teacher From: Ms. Paul, Social Studies teacher Date: January 27, 2007 Subject: Student D
Please be aware that today in class Darlene was unusually active. She was very unfocused and it took a great deal of time to get her started on her work. As we discussed earlier, please continue to monitor to determine whether any type of assessments will be necessary. Thanks.
Student (Transitory) EXAMPLE: To: Mr. Dodson, English teacher From: Mrs. Pierce, Sierra Campbell’s mother Date: April 28, 2008 Subject: Scheduled Meeting Mr. Dodson we have a meeting scheduled at 11:00AM to discuss my daughter Sierra. I will not be able to make the meeting at that time and would like to reschedule for 11:30 AM if you are still available. Thank you.
Business (not a student record and not a transitory record) – Emails that are prepared, owned, used, in the possession of, or retained by an agency in the performance of an official function. EXAMPLE: To: Jackie From: Patti, Contract Specialist Date: January 11, 2006 Subject: Contractual Offer Based on our discussion earlier, the deadline for responding to our offer has been extended. The new deadline is February 2, 2006.
2. What about other forms of ESI that do not include email?
Documents other than e-mail that are created and maintained electronically are also subject to discovery (or disclosure) in litigation. These types of ESI include, but are not limited to, word processing documents, spreadsheets, graphics and presentation documents, images, text files, hard drives, databases, transaction logs, audio and video files, voicemail, Internet data, computer logs, and text messages. Suggested Protocol for Discovery of ESI U.S.D. Ct.
A survey of BCPS departments and offices determined that the largest percentage of documents retained electronically are general correspondence, reports, presentations, spreadsheets, calendars, charts, and voicemail. Retention periods for these items are listed on the BCPS Records Retention Schedule. Note, however, that these documents should be deleted as set forth in the BCPS Electronic Document Retention Guidelines. All electronic documents created in performance of your BCPS duties can be maintained on either a BCPS server or your desktop. Documents that are
3. Is ESI subject to a Records Request from a parent or third party?
Yes. Litigation need not be filed in order for a party to obtain access to electronically stored information. These requests, however, should be handled as any other request for public or student records. The request must be in writing and schools have 45 days to comply with requests for student records. See Superintendent’s Rule 5230 and PS 126. Requests for public records must be filed in accordance with Superintendent’s Rule 2373.
4. What will happen once litigation is filed against the school system?
Please read this section carefully, it explains the “litigation hold.” When the potential for a law suit exists, it is critical that records NOT be destroyed. The only way that parties who may be involved with the suit will know not to destroy records is if they are notified. This notification is called a “Litigation Hold.” Just as the name implies, normal destruction procedures must be put “on hold” or must because of potential litigation. You will be notified in writing by the Office of Law that there is a potential law suit and records cannot be destroyed. Below please
find a copy of the letter you will receive to notify you of the existence of a litigation hold.
ATTORNEY WORK PRODUCT DO NOT FORWARD
RE: Plaintiff v Board of Education LITIGATION HOLD
The school system recently received notice of litigation from which stems from . You have been identified as an employee with knowledge of this matter.
Documents in both hard copy files and in BCPS computer systems may be requested by the parties to the litigation during the discovery phase of this lawsuit, and may also be used as evidence. Consequently, we are directing you to take steps to insure that all documents and electronic data that are potentially relevant to this litigation are preserved.
Until further notice from the Office of Law, you are to preserve and are not to delete, discard, or otherwise destroy original and all copies of all documents, including e-mails, PDF and other electronically-stored documents, correspondence, memoranda, faxes, charts, plans, graphs,
documents or tangible materials – whether stored on your computer at work, on a home or personal computer, in a personal digital assistant (“PDA”) or in any other digital information storage device in your possession. THIS NOTICE SUPERSEDES ANY CONTRARY INSTRUCTION IN BCPS POLICIES AND PROCEDURES AND ANY GUIDELINE YOU MAY HAVE RECEIVED CONCERNING THE RETENTION OF RECORDS, DOCUMENTS OR OTHER ITEMS. FAILURE TO FOLLOW IT STRICTLY CAN RESULT IN SERIOUS LEGAL AND OTHER CONSEQUENCES FOR THE SCHOOL SYSTEM.
It is imperative that you discuss this matter with no one, other than school system attorneys. Should you have any questions, please feel free to contact me at 410-887-4060. If you believe additional school system employees have knowledge of the facts of this case, please advise me by e-mail. Thank you in advance for your cooperation. If you have questions about this notice or how to implement or interpret it, please contact the Office of Law for guidance. Thank you.
When there is a potential for litigation, you will receive a Litigation Hold letter.
A. Identification of Potential Litigation - Upon receipt of a due process hearing request from the parent/guardian or at the time of filing of a due process hearing request by Baltimore County Public Schools (“School System”), the Associate General Counsel, Special Education, will notify appropriate School System personnel regarding the potential litigation. Based on the nature of the due process hearing request, the Associate General Counsel, Special Education, will notify the Assistant Area Superintendent, Area Specialist in Office of Special Education, Principal of the student’s home school, the school based IEP Team Chair, the Office of Student Data, the Department of Technology, and Supervisor of Related Services.
The IEP Team chair shall be responsible for notifying school staff that work with the student such as classroom teacher, related services personnel as well as guidance and attendance office personnel. If the due process hearing request involves a student that currently attends a nonpublic school at School System expense, the Associate General Counsel, Special Education, will notify the Supervisor of Nonpublic Placement and the Nonpublic Case Manager of the potential litigation.
The Supervisor of Nonpublic Placements shall be responsible for ensuring that the nonpublic school staff is aware of the litigation hold and maintains the required documents in their electronic form. B. Assignment of File Number – Upon receipt of a mediation and/or due process hearing request, the request is assigned a file case number that designates the school year and number of files in the special education case tracking database. The Associate General Counsel, Special Education, shall notify the appropriate personnel of the file case number, which will then be utilized as the subject line for all e-mail correspondence regarding the student. The School System staff will be instructed to save all pre-existing electronic communications and/or documentation that are on the school or personal
computers to a folder that is identified by the student’s file case number. Additionally, School System staff will be instructed to save any new documents or e-mail to that folder to ensure all electronic data is saved and accessible. C. Request for Records - The notification of litigation and the need to store/hold electronic documents will be provided when the Associate General Counsel, Special Education, contacts the school based personnel for a copy of the student's file. In addition, a separate letter will be sent to School System personnel (Assistant Area Superintendent, Office of Special Education, and Department of Technology) to notify each office of the need to hold electronic stored information, and to provide documents to the Associate General Counsel, Special Education, if the documents are not part of the existing school file.
Upon receipt of the request for records and litigation hold letter, school based staff shall provide a complete copy of the student's educational record (cumulative file, health record, discipline record, and confidential file) to the Office of Law within five (5) school days of receipt. The request for records and litigation hold letter will include instructions regarding the use of the file case number for any future e-mail and electronic documents as well as the instruction to save existing electronic documents to the file case number folder. D. Continuation of IEP Team Process - The litigation hold/record request letter will also include language that reminds school based staff that the filing of the due process hearing does not interfere with the required timelines for completion of activities such as development of the IEP, convening the IEP Team
to plan for reevaluation, or meeting with the parent to discuss educational concerns. The litigation hold/request letter will notify the staff of the need for a "stay-put" if applicable and ensure the continuation of appropriate services. E. Termination of litigation hold in special education matters - The Associate General Counsel, Special Education, will notify School System staff when a due process hearing request has been resolved either through mediation or settlement and advise that the litigation hold has been lifted. When the due process hearing request results in
an administrative decision, the Associate General Counsel, Special Education, will issue a second litigation hold letter that explains the litigation hold remains in effect until such time that the potential for federal litigation on
appeal has passed. In June of each school year, the Associate General Counsel, Special Education, will review the status of each litigation hold in order to notify appropriate staff of the need to continue such hold.
