Regardless of which day you pick up the current issue of EdTech, odds are there’s an evolving national scandal around information disclosure — who knew what and when did they know it? And increasingly, e-mail, instant messages and cellular text messages factor into answering those key questions.
It’s not a big surprise either that when it comes to litigation, electronic records play a big role in the pre-trial discovery process as well, called e-discovery. And school districts aren’t immune. Still, a year after the most recent amendments to the Federal Rules of Civil Procedure took effect — which requires schools, businesses and government organizations to put systems and policies in place for contending with electronic communications — many organizations are not yet prepared.
While most schools back up their e-mail communications, tape backups typically do not provide a way to search for specific documents, which means a separate searchable archiving system is required. Luckily, those schools that have tackled compliance with the federal rules report that it’s not as onerous as it sounds. Talking with your school or school district’s legal counsel is the starting point, says John Orbaugh, director of technology at Tyler (Texas) Independent School District. After speaking with legal counsel, Tyler decided to retain and store all e-mail (the school district does not use instant messaging) for the maximum period required by law — seven years.
“We took funds from the district general fund, but this was not budgeted for, so we went to the school board, and they designated the funds,” Orbaugh recalls. “It was an easy process because it was a legal requirement we were trying to fulfill. It was something we had to do, and we got it done.” Like most of the schools EdTech interviewed, Tyler’s process involved four steps: determining with legal counsel the type of electronic communications and time period for retention, evaluating archiving tools and storage devices to contain their records, drafting a policy and educating staff, then ensuring that the system met those requirements post-implementation.
Since its retention policy and system went live in April 2006, Tyler has received several e-discovery requests related to potential lawsuits, Orbaugh says. Because the school district’s system enables searches by keywords, sender, date ranges and word strings, Orbaugh reports that it has been able to comply with all e-discovery requests. For more on the options and tools other school districts are deploying, turn to “The E-Discovery Question,” on page 32, and “Help Is on the Way,” on page 36.
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Rules to Live By
Since the 2006 amendments to the Federal Rules of Civil Procedure took effect in federal courts, state courts have begun looking at how to treat electronic data during the pre-trial exchange of information by lawyers, known as discovery. Nine states recently approved e-discovery provisions, and another 13 states are considering them. While the FRCP is fairly vast, running 160 pages, the most crucial changes in e-discovery involve four areas:
- The definition of discoverable material: The amendments introduce the phrase “electronically stored information” to Rules 26(a)(1), 33 and 34, to acknowledge that electronic information — in any form — is discoverable.
- How quickly data must be made available: The amendments to Rules 16 and 26 essentially say lawyers must decide quickly — within 99 days of a lawsuit being filed — what electronic messages can be examined for evidence and how the files will be examined. This period used to stretch to nine months. Given this short window, the amendments note that IT and legal departments must work together. Amended Rule 26(b)(2) makes a distinction between what is reasonably accessible and what is not. Under the new rule, a responding party need not produce electronically stored information if it would result in undue burden or cost.
- What format data must take: The format in which the files will be reproduced for use by lawyers and the court is addressed in Rule 34(b).
- What happens when files are lost: For example, some districts automatically purge e-mail after 90 days. The safe harbor provision, Rule 37(f), provides that, absent exceptional circumstances, a court may not impose sanctions on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an information system. —Kevin Ferguson