eDiscovery isn’t just for large corporations and the large corporate law firms representing them. Government officials like Leslie Knope and her colleagues at the Parks and Recreation Department of Pawnee, Indiana, must frequently engage in eDiscovery when responding to administrative petitions, subpoenas, civil lawsuits, and FOIA/open records requests.
(Ok, not Ms. Knope and her colleagues specifically, since they’re fictional television characters, but you get the point.)
Government agencies face unique challenges in eDiscovery. Their employees need to track down records from multiple agencies, sift through sensitive/privileged/classified documents, and handle many eDiscovery productions because of the many lawsuits and records requests governments receive. Government leaders and records officers need to be strategic when conducting eDiscovery, given their limited budgets and the massive volumes of data they must sift through.
Following eDiscovery best practices for government can help agency officials manage electronically stored information (ESI) productions in an efficient and defensible manner. These best practices include establishing eDiscovery teams, identifying tools and technologies for data management and production, and implementing strategic processes.
First Steps: Establishing an eDiscovery Team and Developing Data Identification and Preservation Policies
Government agencies must select a point person or assemble a team of officials responsible for managing the eDiscovery process whenever the agency receives a public records request or is pulled into administrative hearings or litigation. This person or team should oversee the eDiscovery process and coordinate with attorneys, agency staff, and eDiscovery vendors.
A government department could have a single person responsible for eDiscovery or it may designate an eDiscovery team. Whoever is leading the charge should be well-versed in both IT and the litigation process, and should have excellent project management and communication skills, such as scheduling standing Friday afternoon meetings that could have been emails. (We kid, we kid.) A government eDiscovery team may include:
- Attorneys or lead investigators – Responsible for setting eDiscovery processes and strategy, overseeing ESI management and data productions, reviewing collected data for confidentiality or privilege, and communicating with opposing counsel or records requesters. This role may also include FOIA/open records officers
- Administrators – Employees who implement the eDiscovery process and report to agency attorneys
- Reviewers – Responsible for sifting through collected data to identify relevant ESI and screen for confidentiality or privilege
- IT specialists – Responsible for data preservation and collections, and maintaining the chain of custody of ESI productions
eDiscovery teams or officials should set data preservation and collection policies for government departments or agencies to ensure they can gather ESI quickly. They should also design policies to avoid overcollection, which will waste precious (and limited!) time and money.
Finding the Right Tools: Leveraging Technology for an Efficient eDiscovery Process
Like corporations, government departments and agencies have been turning to outside eDiscovery vendors and tools to assist with ESI productions. Choosing the right tools based on an agency’s size, data quantities, and ESI production needs will help reduce financial and labor costs.
However, government departments and agencies usually should follow a formalized RFP process to hire eDiscovery vendors or purchase technology solutions, since the public will want to know how its tax dollars are being spent. Agencies’ eDiscovery teams may need to tailor RFP processes (within the bounds of applicable public bidding laws) to the purchasing of eDiscovery solutions or the hiring of vendors to assist with the eDiscovery process.
Today, governments can manage much of the eDiscovery process in-house thanks to the many eDiscovery tools on the market. Governments interested in doing so should look for tools that are:
- Cloud-based to facilitate remote access and cross-collaboration between different departments/agencies, including having shared workspaces
- Able to sync with agency data sources, which can help avoid costly and time-consuming collection and processing
- Highly customizable
- Backed by customer support/success teams who can assist with setup/integration and troubleshooting
- Transparent with their pricing (and have no hidden or add-on fees)
- Able to scale to the needs and changing demands of the agency or department
- Packed with cutting-edge cybersecurity, using industry gold standards, that meets statutory requirements for government data storage
Practice Makes Perfect: Crafting a Repeatable and Defensible eDiscovery and Document Production Strategy
Governments, just like corporations, need a thorough, defensible eDiscovery strategy to justify their productions in legal matters. Inadequate eDiscovery procedures could lead to higher litigation costs if opposing parties or records requesters challenge an agency’s ESI production in court. Inadequate controls may also cause government entities to inadvertently disclose sensitive, privileged, or even classified information.
Government departments and agencies should create standard operating eDiscovery procedures that apply to ESI productions during legal matters or when responding to records requests or subpoenas. Standard processes give agency employees—and their outside counsel and eDiscovery vendors—a roadmap for responding to requests for data. A well-defined, thorough, repeatable process can also make it easier for agencies to justify productions when challenged by litigants or records requesters. These processes should include:
- Technology-assisted review and predictive coding to help ensure productions contain all relevant ESI
- Quality control measures during document review to prevent overproduction or disclosure of privileged, sensitive, or classified materials
- Policies for redactions and privilege logs, which may be based on FOIA/open records laws and statutes governing the disclosure of government documents or information
eDiscovery teams for government agencies should also implement post-project evaluation procedures to gather feedback and improve their processes. And, they should stay on top of new features offered by eDiscovery tools, especially as these tools incorporate machine learning and AI.
eDiscovery is just as important for governments as it is for corporations and law firms. Whether in connection with administrative proceedings, lawsuits, subpoena responses, or public records requests, governments need policies and procedures for conducting eDiscovery, including data governance/preservation, collection, review, and production.
They should be proactive in establishing a repeatable eDiscovery process through best practices, including designating officials or teams to oversee eDiscovery, adopting standard operating procedures, and ensuring agency employees understand their roles during data productions. Perhaps most importantly, selecting the right eDiscovery tools and vendors can help governments manage and produce ESI more efficiently and effectively than by going at it alone.