By Erica Wilson, Government Information Analyst.
Litigation is a complicated and stressful event. Records management personnel are often faced with the challenge of providing records and information during discovery, or the pre-trial phase wherein facts are gathered to assist the parties involved in preparing a case for trial. E-discovery is when parties ask for and obtain digitally-based records. These records are often referred to as Electronically Stored Information or ESI. ESI covers a variety of information: Word documents, spreadsheets, databases, emails, web pages, text messages, social media, metadata, internet search histories, etc., and this information can be voluminous and costly to sift through. Since ESI is often continually modified and/or deleted, it is especially crucial for agencies to have policies and procedures in place to protect data as soon as litigation can be reasonably anticipated.
At the NAGARA-CoSA Annual Conference this year, Pari J. Swift of the Ohio Attorney General’s Office and a panel demonstrated how important it is to have consistent and defensible policies and procedures in place before litigation starts. The panel acted out a scenario in which a records management officer of a state agency became a deponent in a case after multiple issues arose concerning the agency’s records management program: records were missing, certain database records did not appear on their records retention schedule, data was not migrated to a new system properly, etc. An attorney questioned the RMO all of the details of the agency’s records management program – it was tense and nerve-wracking; even sitting in the audience, I was worried the attorney might turn and ask me a question!
Fortunately, there are some measures you can take to make the processes of e-discovery and deposition easier.
- Have consistent, repeatable, and defensible policies and procedures in place prior to litigation. Make sure that everyone affected by these procedures knows about them, and that everything is kept up-to-date. Litigation and e-discovery are not simply the purview of the records manager or IT; they are agency-wide issues, so be certain that everyone who might need to provide litigation support is aware of what their roles are.
- Ensure that your records retention schedule is reviewed periodically. Are all of your records scheduled? Has the media the record is kept in changed? Has TSLAC made any changes to its retention schedules? A records retention schedule should be a constantly evolving document.
- Know where your records are. This will make any discovery much easier, faster, and cheaper. In 2007, the average cost for processing one gigabyte of data through electronic data discovery was $1,500 to $2,000. If you know where your records are located and what is in each series, you can help refine the discovery request and produce only what is necessary.
- Perform exit interviews with departing employees to make sure the records they created are preserved properly. Many times, an employee will leave an organization and their records will become the responsibility of someone else – perhaps a supervisor or the subsequent employee in that position – who is not familiar with the records. Often, these records are then ignored or deleted, which can be problematic if litigation occurs. Either someone will have to wade through the unknown records to see if they are relevant or the records manager will have to scramble for an explanation as to why, how, and when the records were disposed of.
- And finally, implement a strong disposition program. Have scheduled days wherein records that have met their retention periods are purged appropriately – and don’t forget to include your electronic records in the disposition! Maintain a record of disposition; having evidence that demonstrates that destruction was done routinely and in accordance with the law is far superior to sporadically destroying lots of records. Additionally, disposition programs are the first thing that opposing attorneys typically focus on, so having solid policies forces attorneys to litigate on the facts of the case instead of records management processes.
With some forethought and planning, records managers can mitigate the stress, cost, and disruption of litigation.
Have you ever been deposed or played a role in litigation? Discuss your experience in the comments section!