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The KVS Enterprise Vault

e-Discovery What You Need to Know

Presented byPresented by

John GillispieJohn GillispieExecutive Director, Iowa Communications NetworkExecutive Director, Iowa Communications Network

Chief Operating Officer, Iowa Information Technology EnterpriseChief Operating Officer, Iowa Information Technology Enterprise

July 23, 2009July 23, 2009

MinnesotaMinnesotaDigital Government SummitDigital Government Summit

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Covered in this presentation:

Records Management

• What to save and when to delete?

• What requirements govern records retention?

• How long must records be kept?

• What is “intellectual control” of records?

e-Discovery

• What is e-discovery?

• How does it impact how you manage your records?

• What are your responsibilities?

e-Discovery: What You Need to Knowe-Discovery: What You Need to Know

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Records Records ManagementManagement

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Generally, in state government, information in any form is a record if it:• sets policy; • establishes guidelines or procedures;• certifies a transaction or documents an activity;• becomes a receipt; • documents a statutory requirement;• establishes identity;• conveys a right; or • grants a privilege.

What is a Record?What is a Record?

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Bound Volumes, Official Publications,

Notebooks

Paper Files

Offsite Storage of Government Records

Manual

Procedural Manuals,Operating Instructions,

Written Policies

Transaction / EventLogging Tapes

Forms of Paper RecordsForms of Paper Records

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Backup TapesOptical

State-Owned Storage Area

Network

Internal DiskStorage

Servers

PersonalComputers

Audio / Video Recording

Tape

Electronic Audio & Video Recording

Files

Phonemail

Instant Message Chat, Blogs

E-mail(Business and Possibly

Personal Accounts)

Cell Phone ShortMessage Service

Employee-Owned or Internet Offsite

Storage

USB Memory Floppy Disks Portable HardDrives

32 GB

Solid StateMemory

Forms of Electronic RecordsForms of Electronic Records

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Record Retention GuidelinesRecord Retention GuidelinesYou should assess the following factors when determining retention periods for records:

Administrative Value Fiscal Value

Legal Value Historical Value

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Factors Affecting Record RetentionFactors Affecting Record Retention

Federal Laws /Program

Requirements

State Open Records Laws

Continuity Of Operations /

ContinuityOf Government

Records ManagementLaws & Practices

Unique State Agency Statutory

or BusinessRequirements

LegalDiscovery

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Managing Electronic RecordsManaging Electronic Records

• Electronic records are subject to retention and destruction requirements just as records in paper or any other form.

• In any recordkeeping system, records must be brought under “intellectual control” to enable them to be managed, retrieved, and understood. This involves documenting information about the record (i.e. subject, originator, recipients, date of origin, unique record identification, etc.)

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• Electronic records must retain their content, structure, and the business context in which they created. Structure refers to both: a) the layout or format; and b) links to attachments and related messages. Context refers to information documenting the source and intended recipient of the record (usually found in the message header of e-mail or properties

fields of documents).

• Electronic records are not required to be maintained in their original hardware and software

environments as long as the original content, structure and context of the records is maintained.

Managing Electronic Records Managing Electronic Records (continued)(continued)

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• If electronic records are retained in electronic form and have continuing value, they must be migrated across changes in hardware and software platforms in order to maintain accessibility.

• In order to maintain their value, stored electronic records must be inviolate (i.e. they need to be maintained in a system which prevents the original records from being altered or manipulated).

Managing Electronic Records Managing Electronic Records (continued)(continued)

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““Intellectual Control” of RecordsIntellectual Control” of Records

What information is What information is contained in the records?contained in the records?

Where are the records located Where are the records located and in what form?and in what form?

What “records” do you have?What “records” do you have?

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e-Discoverye-Discovery

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Spoliation is “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999).

There are severe sanctions for spoliation, including civil and

criminal penalties and adverse rulings by the Court.

A Key e-Discovery Term: Spoliation

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You have a duty to preserve all evidence relevant to pending or "reasonably foreseeable" litigation. This includes:

• MS-Office or similar documents (Word, Excel, PowerPoint)

• E-mail and e-mail attachments

• Calendars and planners

• Databases

• Instant messages

• Network logs

• Graphics and CAD files

• Voicemail

Duty to Preserve All Relevant Evidence

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One of the commonly used terms in the legal community for e-discovery of digital information is Distributed Data, which is defined as follows:

Information belonging to an organization which resides on portable media and non-local devices, including data in remote offices, home computers, laptop computers, personal digital assistants, wireless devices (e.g. Blackberry), and internet repositories (e-mail services or data storage services). Distributed data also includes data held by third parties such as application hosting services and non-traditional sources such as phone mail.

“Distributed Data”

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Federal Court Rules:

• Permit the requesting party to designate the form or forms in which it wants electronically stored information produced

• Provide a framework for resolving disputes over the form of production, in the event that the responding party objects to the requested format(s).

If a request does not specify a form of production, the responding party must notify the court of the form in which they intend to produce material – with the option of producing either (1) in a form in which the information is ordinarily maintained, or (2) in a “reasonably usable form”.

Format of Production

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If the discovery order is for specific information, do not merely submit e-mail server or data base backups. This may be considered a refusal to obey a discovery order. The court may impose the following sanctions:

•Order that the evidence sought be automatically construed in favor of the requesting party;

•Refuse to allow the disobedient party to make claims or defenses related to the evidence;

•Stay the case until the discovery order is obeyed;

•Dismiss the action;

•Render judgment for the requesting party;

•Declare the disobedient party in contempt of court; or

•Make any other order that is just under the circumstances.

Reasonably Usable Form

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For data subject to pending or reasonably foreseeable litigation:

• Discontinue routine overwriting of backups from affected systems.

• Discontinue destruction of files in accordance with retention schedules.

• Transfer electronic records subject to a litigation hold to a dedicated server or other equipment, if possible.

• Upon advice of legal counsel, you may be asked to segregate, remove or exchange computers and/or hard drives.

• You should document the steps taken to preserve records to defend against accusations of spoliation.

Preserving Electronic Records

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Observe the following to enhance the legal admissibility (i.e. improve the trustworthiness) of electronic records:

•Document that similar kinds of records generated and stored electronically are created by the same processes each time and have a standardized retrieval approach.

•Substantiate that security procedures prevent unauthorized addition, modification, or deletion of a record and ensure protection against power outages.

•Identify the media on which records are stored throughout their life cycle and observe the authorized record retention and destruction schedules for all records (unless special circumstances apply).

Enhancing The Legal Admissibility Of Electronic Records

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Questions?Questions?

e-Discovery: What You Need to Know