Revised federal archiving rules raise legal, logistical challenges.
Though most people envision schools as quiet, sleepy places during the summer, Jay Attiya, the network manager for the 11,000-student Middletown, N.J., school district, had anything but a tranquil summer.
He spent his days putting an electronic archiving system in place in response to revised rules from the U.S. Supreme Court regarding federal lawsuits. The rules, updated in December 2006, require companies, government agencies, school districts, and generally any organization that might be sued in federal court to have systems for retrieving electronic data such as e-mail correspondence if it is needed as evidence in a federal case.
That means districts need to develop policies and software systems for the storage of e-mail, instant messages, word processing documents, PowerPoint presentations, and any type of electronic file on a computer system. The new requirements have caught many districts by surprise, and school officials are now playing catch-up to adopt policies and make sure they have the needed software.
Even districts that were already aware of the new requirements are grappling with just how to implement them.
Kim A. Rice, the chief information officer for the 57,000-student Boston public schools, says her district hired someone during the last school year specifically to help with records management, including the archiving of electronic documents and e-mail.
“We’ve probably created more questions for ourselves than we have answers,” she says. “There is some relative newness to this, and there are still some questions about what the [rules] actually mean.”
Attiya sees other districts facing similar challenges in response to the revisions, which were made to the Federal Rules of Civil Procedure, the guidelines governing legal practices and evidence in federal lawsuits.
“Some districts know about this, some have heard about it and are following through, but a lot of districts haven’t put good policies in place to do this,” he says.
More than 90 percent of all documents created these days are electronic, and only 30 percent of those wind up on paper, says Alvin F. Lindsay, a partner in the Miami office of the law firm Hogan & Hartson, which specializes in education law. Those electronic documents—which in many cases involve e-mail correspondence—can qualify as evidence in federal court, he says.
That reality “forced the U.S. Supreme Court to revise the rules of civil procedure and bring them into the 21st century,” Lindsay says. Before the revision, the Federal Rules of Civil Procedure addressed only paper records and correspondence when it came to dealing with evidence in a lawsuit.
1. Determine whether your district has a well-crafted policy on e-mail retention that is based on the most recent changes to state and federal law. If it doesn’t, school leaders need to begin the process of crafting a policy.
2. Consult a school district lawyer about whether your current policy needs to change in light of the revised Federal Rules of Civil Procedure, which were updated in December 2006.
3. Assess your e-mail traffic to determine the volume. Determine whether additional servers might be needed to archive the number of e-mails sent and received in your district.
4. Determine whether existing information-technology tools and procedures can handle the archiving of e-mail for the time period required by school policy.
5. Consider using a private company that provides archiving services if the technical needs of the district require help beyond the capacity or expertise of the staff.
But the revised rules have left much about how to comply hazy. They require that districts preserve electronic documents that may be related to a case as soon as school officials have any indication that a lawsuit may be filed. But when that time frame begins is not spelled out, says Vince Smolek, the director of product management for Computhink, a content-management company based in Chicago that specializes in e-mail archiving.
“Schools were pretty good at keeping paper files organized and stored, but were very loose with electronic files,” Smolek says. “This [change in federal rules] is the enlightening that you have to pay attention to this stuff.”
Plus, even though the rules require that districts preserve electronic content, they don’t say for how long. It only requires districts to set a “reasonable” policy. Some districts may take that to mean a document may be deleted after 30 or 60 days. Other districts might require that electronic documents be saved for several years. For example, the Middletown district has decided to keep e-mails for three years.
To complicate matters, schools not only have to make sure they save electronic documents now, but also must be able to access them relatively quickly to provide them to lawyers in the event of a federal lawsuit. For districts that don’t have an easy way to recall or sift through documents, particularly e-mail, searching through backup tapes—a common method of storing e-mails—can be expensive and extremely time-consuming.
“If you’re called upon to produce information on backup tapes, and you have to restore every set of backup tapes, that’s an IT nightmare,” says Michael Ivanov, the senior director of archiving at CommVault, an Oceanport, N.J.-based information-management company that provides e-mail archiving services, and whose clients include the Middletown district and the 20,000-student Moore, Okla., schools.
Tracking Down Documents
In May, CommVault released the results of a poll of several hundred school information-technology administrators and found that 80 percent of those questioned were still unclear about how their electronic document-retention policies worked. Though two out of three of those surveyed were aware of the changes to the Federal Rules of Civil Procedure, 90 percent of their schools had not responded by putting new policies in place.
Yet it’s vital to be able to track down electronic documents that might be pertinent to a case, says Thomas E. Wheeler, an Indianapolis-based lawyer who represents school districts and also serves as a board member for the Alexandria, Va.-based National School Boards Association’s Council of School Attorneys. The rules say that if electronic documents can’t be found, juries are permitted to assume that they contained incriminating evidence, he says.
“The new rules create a situation where if the stuff is wiped out, the presumption is that it was the worst thing,” he says. “That’s in there to encourage people not to destroy documents.”
As it is, some districts are struggling to figure out how to comply as legal problems arise.
Sandra W. Lewis, the general counsel for the 11,000-student Greater Clark County School Corporation in Jeffersonville, Ind., says her district is dealing with a federal lawsuit filed by an employee over a salary dispute.
“We immediately sent out a memo letting all persons know that electronically transmitted documentation needs to be preserved during the litigation process,” Lewis says.
Lewis went to the technical-services department in her district after the lawsuit was filed and asked the staff whether deleted e-mails could be tracked down. She is now trying to determine what overall policy to adopt on e-mail archiving.
“What we’re doing right now is having tech services research to see what they can do within our cost parameters,” she says. “We have to be as cost-effective as we can and be in compliance with the law.”
CIOs ‘Roped In’
The revised rules also mean that information-technology directors now will need to be heavily involved in federal lawsuits from the outset.
“Both sides [in the case] are going to have to talk about the [electronic] environment that exists, the data that’s available, and how that data is produced,” says Ivanov of CommVault. “That means IT is going to get roped in at the very beginning.”
Attiya’s New Jersey district spent about $50,000 to hire an e-mail archiving company and install the hardware needed over the summer. But Attiya feels such a system will ultimately pay off when it comes to the time and money that might be spent searching for records later on.
“I wanted a system that would allow us to archive all or any subset of mailboxes, decide what kind of messages to archive, or what group of people’s messages to archive,” he says. “The retrieval piece is really important. I can sit down at a terminal and say, ‘Go find all these e-mails,’ and it won’t take up all my personal time. Then I can produce a CD of all the e-mails to give to the opposing attorney. In the past, I’d produce a box of 5,000 sheets of paper of all the e-mails, and that means many man hours.”
But districts shouldn’t feel they have to hire an outside company to do their archiving, says Lisa E. Soronen, a senior staff lawyer for the National School Boards Association. Districts should first think about how to retain electronic information and put a policy into effect.
Small schools with less e-mail traffic and fewer electronic documents may be able to do their own archiving, says Wheeler, the Indianapolis lawyer.
“A lot can be done in-house, particularly for smaller schools,” he says. “I’m telling people to use their best judgment. If this is going to destroy your computer system and it’s going to take your IT guy three weeks to do it, then don’t.”
While some districts, particularly smaller ones, may believe they don’t need to worry about the new rules that pertain to federal lawsuits, Lindsay, the Miami-based lawyer, says they should think again because state procedures typically take their cues from the federal courts. It’s only a matter of time, he says, before states begin adopting similar requirements regarding electronic content and lawsuits.
“The states haven’t adopted similar rules regarding electronic discovery yet, but they will,” he warns. “They all will.”
For Attiya, the investment in e-mail archiving is worthwhile. “You hope you’re never sued and you never need to use it,” he says, “but it’s an insurance policy.”
Vol. 01, Issue Fall 2007, Pages 12-15Published in Print: September 12, 2007, as E-Mail Alert!
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