1. Digital Government Summit
The KVS Enterprise Vault
Minnesota
Digital Government Summit
e-Discovery
What You Need to Know
For additional information, contact:
John Gillispie
State of Iowa Chief Operating Officer Department of Administrative Services Information Technology Enterprise phone: 
Presented by
John Gillispie
Executive Director, Iowa Communications Network
Chief Operating Officer, Iowa Information Technology Enterprise
July 23, 2009

2. e-Discovery: What You Need to Know
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?
For More information:
National Association of State Chief information Officers (NASCIO) Whitepaper:
Seek and Ye Shall Find? State CIOs Must Prepare Now for E-Discovery!
Northwestern Journal of Technology and Intellectual Property
Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure

3. Records Management

4. What is a Record?
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.
General guidelines for public employees on determining the disposition of a record:
Decide how best to classify the record. Generally, if it sets policy, establishes guidelines or procedures, certifies a transaction, becomes a receipt, or documents a statutory requirement, it is a record and must be managed accordingly.
Don't be swayed based on the form of the record. For example, if a governmental body’s official policy statement on matters of historical or statutory significance is contained in , it should be subject to the same treatment and preserved as if it were created as a paper record.

5. Forms of Paper Records
Paper records typically fall into a limited number of familiar forms.

6. Forms of Electronic Records
Managing the growing volume and type of electronic records is made even more complex by the legal and organizational rules which govern retention. Based on your own experience with the records and processes you use, you must address the following questions:
Which types of electronic records must be retained?
How long must they be kept?
What does it mean to retain a record in the digital realm?
Also, with information technology, you must constantly monitor your environment for “non-traditional” sources of records:
mid-1990s - Modern, Internet-wide, GUI-based messaging clients.
mid-1990s - Internet file sharing and online document storage.
1997 – Hotmail, among the earliest free webmail services.
BlackBerry was introduced as a two-way pager. In 2002, the Blackberry and a range of similar products from Compaq, Palm, Sony, Nokia, Motorola and others usher in the era of the Smartphone and mobile ..
Facebook - one of the most popular social networking systems for students and working adults worldwide, now routinely used by government and business. .
2007 – Twitter – instant messaging in 140 characters or less.

7. Record Retention Guidelines
You should assess the following factors when determining retention periods for records:
Administrative Value
Fiscal Value
Legal Value
Administrative Value – Usefulness for carrying out agency business requirements, derived from the information contained in the record. How long does the record retain this value? What is the impact if the records were unavailable?
Fiscal Value – Usefulness in documenting financial transactions and obligations. Do any professional standards (i.e. accounting, banking, or professional association standards) apply to the records? Would the custodian of the record or others suffer a financial loss if the records were unavailable?
Legal Value – Usefulness in documenting legally enforceable rights or obligations, both those of a government body or other organization and those of persons directly affected by the agency's activities. Consider:
Statutory retention requirements
Statutes of limitations
Legal precedents
Appeal periods for decisions based on the records.
The likelihood the records would be subject to legal action.
Consequences of the inability to produce records in a form
admissible in court.
Historical Value – Any value the records have to warrant their permanent retention beyond the time they are needed for their normal administrative, fiscal, or legal purposes. Historical value is usually based on the evidential and/or informational value of the records.
Historical Value

8. Factors Affecting Record Retention
The following factors will affect record retention policies and practices:
Continuity of Operations / Continuity of Government – What records are needed in the event of a disaster and where/how should they be stored? You should establish a recovery point objective (i.e. how soon must a system or service be restored in the event of a disaster.)
Records Management Laws and Practices – Statutory requirements and procedures unique to each State for the preservation of records.
State Open Records Laws - Statutory requirements and procedures unique to each State providing access to records.
Legal Discovery – Is your data under intellectual control and do you have procedures established to accommodate the preservation and production of data in the event of litigation?
Federal Laws / Program Requirements – Most federal programs define records retention and management requirements, some of which may supersede State requirements.
Unique State Agency Statutory or Business Requirements – This would include special privacy laws (e.g. FERPA, HIPAA) or other requirements specific to the mission, powers, and duties of the governmental entity.

9. Managing 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.)
In any recordkeeping system (electronic or manual), records need to be brought under intellectual control to enable them to be managed, retrieved, and understood. Intellectual control of records involves documenting information about the record such as its origins and its use, and applying unique identification mechanisms such as metadata (i.e. data describing the data). The creation and retention of recordkeeping metadata should be managed by recordkeeping systems and should be integral to their operation. Traditional metadata has existed in records management systems in the past in the form of file registers, file covers, indexes and movement cards. Traditional metadata has existed in archival management systems in the form of files lists, finding aids and archival databases. With the emergence of electronic recordkeeping and a ‘records continuum’ approach, the distinctions between these two systems environments are increasingly blurred. In the future the same metadata will very often serve both sets of purposes.
Electronic records must retain their content, their structure and the business context in which they occurred. Structure refers to both the format or layout of the record and the technical requirements for reading the record. Context refers to the information documenting the source of the record and any restrictions on its use. It would also include other information such as the date of creation and the author. This information must be must be preserved in order for the context of the message to be understood.
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. If electronic records are retained in electronic form and have continuing value, it is essential that their accessibility is maintained. This may require migration across changes in hardware and software platforms in order to maintain that accessibility.

10. Managing Electronic Records (continued)
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 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.
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).
Admissibility of Electronic Records as Evidence- It should be noted that electronic records may be admitted in evidence to Federal courts for use in court proceedings pursuant to Federal Rules of Evidence §803(8) and State courts (Iowa Code §554D.115) if trustworthiness is established by thoroughly documenting the recordkeeping system's operation and the controls imposed upon it. The following characteristics of an electronic records management solution enhance the legal admissibility of electronic records.
Documentation that similar kinds of records generated and stored electronically are created by the same processes each time and have a standardized retrieval approach.
 Substantiation that security procedures prevent unauthorized addition, modification or deletion of a record and ensure system protection against such problems as power interruptions.
 Identification of the electronic media on which records are stored throughout their life cycle, the maximum time span that records remain on each storage medium, and the authorized record retention schedule of all records.
 Coordination of all of the above with legal counsel and state archivist’s staff.

11. Managing Electronic Records (continued)
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).
Special Considerations Relating To Long Term Storage Of Electronically Signed Records - Upon the (future) implementation of electronic signature technology, agencies must give special consideration to the use of electronic signatures in electronic documents that preserve legal rights. Because long-term temporary and permanent electronically signed records have greater longevity than typical software obsolescence cycles, it is virtually certain that agencies will have to migrate those records to newer versions of software to maintain electronic access. The software migration (as opposed to media migration) process may invalidate the digital signature embedded in the record. Consequently, this may adversely affect an agency's ability to recognize or enforce the legal rights documented in those records. How would a technological solution preserve the validity of a digital signature?

12. “Intellectual Control” of Records
What “records” do you have?
Where are the records located
and in what form?
What information is
contained in the records?
Intellectual Control of Records
Records collected over the years can become unintelligible piles of useless garbage unless intellectual control is maintained. Intellectual control establishes order over records. Records inventories represent the holdings of a repository. Finding aids such as directories or metadata repositories are created so that users can locate information within the records.
By maintaining intellectual control, records custodians are protecting the rights of citizens to have access to the public records of their communities. Knowing what you have is essential before beginning other records or preservation activities

13. e-Discovery
Legal Discovery - Legal cases typically focus on the duty to preserve documents which one knows or should have known would be relevant to a case (e.g., Wm T Thompson v. General Nutrition Corp., 593 F.Supp. 1443, 1445 (C.D.CA.1984). The legal discovery of electronic information is referred to as e-Discovery.

14. A Key e-Discovery Term: Spoliation
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 ).
There are severe sanctions for spoliation, including civil and
criminal penalties and adverse rulings by the Court.
See slide 18 for a list of possible sanctions.

15. Duty to Preserve All Relevant Evidence
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)
and attachments
Calendars and planners
Databases
Instant messages
Network logs
Graphics and CAD files
Voic
The Chief Legal Counsel will need to coordinate with administrators and managers to secure the necessary data. This will involve coordination with selected employees and may include contractors and consultants, who may have relevant evidence or documents in their possession. All locations of potentially relevant electronic and other information will need to be covered, including:
Desktop and laptop computers
Network servers
Handheld devices
Storage devices including CD's and ZIP drives in offsite storage
Remote computers with network connections
servers

16. “Distributed Data”
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 ( 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.
Please Note: Information Technology organizations may define distributed data differently (for example, in some organizations distributed data includes any non-server-based data, including workstation disk drives). It is essential for the legal counsel and IT professionals to have a common understanding of such issues when responding to legal discovery.

17. Format of Production 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”.
Federal court rules address the format of production of electronically stored information, and permits the requesting party to designate the form or forms in which it wants electronically stored information produced.
The rules does not require the requesting party to choose a form of production, however, since a party may not have a preference or may not know what form the producing party uses to maintain its electronically stored information.
The rules also provide a framework for resolving disputes over the form of production, in the event that the responding party objects to the requested format(s).
Finally, the rules provide that if a request does not specify a form of production, or if the responding party objects to the requested form(s), the responding party must notify the requesting party of the form in which they intend to produce the electronically stored 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.
Please Note: Even though the rules are established by Federal Courts, such rules and conventions are routinely adopted by the State Courts.

18. Reasonably Usable Form
If the discovery order is for specific information, do not merely submit 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.
Paper may not always be a “reasonably usable form” - In a recent decision, Judge Waxse of the District of Kansas addressed the question of whether paper is a “reasonably usable format” in which to produce information, at least under the circumstances of that case. White v. Graceland Coll. for Lifelong Learning, Inc., 2008 WL (D. Kan. Aug. 7, 2008), is a wrongful termination case in which the defendant produced s and attachments in paper. A paralegal converted the native documents to PDF, printed and produced them.
The plaintiff moved to compel production of the records in their native format, arguing that he could not otherwise determine when particular records were created or sent, or whether the records had been modified. Judge Waxse agreed, finding that the defendant “failed to produce the s and attachments in either the form in which they are ordinarily maintained, or in a ‘reasonably usable form,’ as required by the court rules.

19. Preserving Electronic Records
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.
At the commencement of litigation, one party may serve a letter requesting that its opponent preserve all electronic information, including deleted files and file fragments, and cease modifying or deleting electronic information relating to pertinent topics.
"Deleted" does not necessarily mean gone forever. Computer files that are deleted by the user are designated for deletion but typically remain on the system until they are overwritten randomly as the system needs the space. So, at any given time, a computer's hard drive may have "deleted" data that can be recovered. Such a preservation request may require you to immediately discontinue using certain computers or systems to comply with this request.
The discovery motion may also demand preservation of 'all' electronic data, including every single daily backup tape and file on an organization’s system.

20. Enhancing The Legal Admissibility Of Electronic Records
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).
The effective management of public records is essential to discharging your responsibilities to the citizens of your State and prevailing in a court of law. Observance of best practices in everyday operations can go a long way to mitigating potential problems if your organization finds itself involved in litigation or a criminal proceeding.

21. e-Discovery: What You Need to Know
Questions?
e-Discovery:
What You Need to Know