The KVS Enterprise Vault

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The KVS Enterprise Vault
Minnesota Digital Government Summit
e-Discovery What You Need to Know
Presented by John Gillispie Executive Director,
Iowa Communications Network Chief Operating
Officer, Iowa Information Technology Enterprise
July 23, 2009
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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?

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• Records Management

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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.

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Forms of Paper Records
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Forms of Electronic Records
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Record Retention Guidelines

• You should assess the following factors when
  determining retention periods for records

Administrative Value
Fiscal Value
Legal Value
Historical Value
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Factors Affecting Record Retention
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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.)

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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 e-mail 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.

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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).

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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?
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e-Discovery
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A Key e-Discovery Term Spoliation

• Spoliation is the destruction or significant
  alteration of evidence, or the failure to
  preserve property for anothers use as evidence
  in pending or reasonably foreseeable litigation.
  West v. Goodyear Tire Rubber Co., 167 F.3d
  776, 779 (2d Cir. 1999).
• There are severe sanctions for spoliation,
  including civil and
• criminal penalties and adverse rulings by the
  Court.

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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)
• E-mail and e-mail attachments
• Calendars and planners
• Databases
• Instant messages
• Network logs
• Graphics and CAD files
• Voicemail

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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 (e-mail 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.

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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.

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Reasonably Usable Form

• If the discovery order is for specific
  information, do not merely submit e-mail 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.

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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.

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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).

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Questions?
e-Discovery What You Need to Know