E-discovery adds twist to litigation

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New rules for electronic data discovery during litigation, combined with the massive amount of electronic data now available in federal databases, will require closer communication between the legal and information technology departments at federal agencies and standardized processes across business units, according to panelists discussing enterprise search and e-discovery at the FOSE Conference and Exposition in Washington.

The civil rules of procedure, which went into effect Dec. 1, 2006, have 'really changed the environment for the IT folks' in the last year, said Edward Meagher, deputy chief information officer at the Interior Department. 'We need to start saving documents that we previously didn't save and ensure documents are searchable and retrievable and do it very rapidly. E-mail, voice mail, instant messages, text messages ' all are now in discovery [in a legal case] and so they need to be searchable,' he said. 'It's one of those issues that's really crept up on us.'

With millions'and perhaps billions'of e-mails alone in even a single part of the federal government, searching electronic data is no small task, and the technology to do so is still a work in progress. Add to that legacy data that is no longer accessible and the relative difficulty today in searching electronic documents, combined with expectations that enterprise searches should be as easy as a Google Internet search, and compliance with e-discovery rules becomes all the more challenging.

Complications don't end there. Today there is no real definition of electronically stored data, because the current definition is all-encompassing and includes future technology, said Jason Baron, director of litigation at the National Archives and Records Administration. And the sanctions, should you not comply with judicial discovery requests, can be a little scary, he said.

Legacy issues complicate the problem, Baron continued. 'Every federal agency has legacy information that can't be read anymore,' he said. Baron cited a current lawsuit between an individual and the Central Intelligence Agency and the National Archives. The plaintiff included the Archives in the lawsuit 'because he assumes we can read punch cards,' Baron said.

Baron urged agencies to build processes that enable control of electronic assets for enterprise-wide searches and develop knowledge of the technology and information at the agency to manage the process. Agencies and departments also should have a lawyer on staff who understands technology and communicates regularly with the IT department and the CIO.

FOSE is run by the 1105 Government Information Group, which also owns Government Computer News.

About the Author

Kathleen Hickey is a freelance writer for GCN.


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