Archiving 101Email and Open Records

Presented By:

Tom PetitGaggle

Archiving Serves Many PurposesLegal Discovery

Federal Rules of Civil Procedure (FRCP)Sunshine Laws/ Freedom of Information (FOI)

Regulatory ComplianceStorage Management/BackupRedundancy/Disaster RecoveryGreen InitiativesArchiving is not student records retention

e-discovery and Regulatory Compliance

Yes, you have to do it!

Legal (e-discovery) DiscoveryAmendments to Federal Rules of Civil Procedure

(FRCP)require organizations to manage their email in such a way that it can be produced in a timely manner when necessary in legal proceedings (e-discovery).

e-discovery refers to finding and producing documents stored in electronic form in response to litigation or regulatory requirements. Civil litigants, regulators and criminal prosecutors now commonly ask for copies of e-mails and make broad requests for all electronic records.

E-discovery rules apply to administrative proceedings.

Legal (e-discovery) Discovery cont.Courts also continue to remind counsel of their

obligation not only to ensure that a legal hold notice is issued in a timely manner, but also to monitor its implementation.

Cooperation remains a significant topic, both in the context of search methodology and form-of-production disputes. Courts continue to be keenly aware of counsel's efforts--or lack thereof--to resolve e-discovery issues before seeking judicial assistance.

http://www.ediscoverylaw.com/

Important e-discovery LessonsYou can win a lawsuit and still lose on e-discovery

issues.Keithley Homestore.com Inc., 2008 US District LEXIS

61741

Keithley won summary judgment but still had to pay $283,000 in fees for failing to preserve and produce required electronic evidence.

If all you have is back-up tapes you are still be required to produce data.

Disability Rights Council of Greater Washington , Washington Metropolitan Area Transit Authority 2007

US District LEXIS 39605

Production of email from backup tapes was ordered by the court at the expense of the producing party.

e-discovery Lessons Continued

You might have to produce data no matter how difficult it is or how much it costs.

Auto Club Family Insurance , Aher 2007 WL 2480322

(E.D. LA. August 29, 2007)

“Like other courts that have addressed this issue the court will not automatically assume that an undue burden or expenses may arise simply because electronic evidence is involved.” “In the world of electronic data, thanks to search engines, any data that is retained in a machine readable format is typically accessible.”

What Does This Mean?Potential Penalties

Failure to produce documents may lead to sanctions such as: Monetary fines Exclusion of evidence Adverse instructions to the jury Summary judgment/case dismissal

Unreasonable burden claimsSAFE Harbor provisions of the FRCP are not necessarily

afforded to parties that do not adequately protect dataElectronic data is assumed to be searchableFailure to have a system in place will not cause SAFE

Harbor exception in most cases

Freedom of Information (FOI)Sunshine Laws

Freedom of Information Acts (FOIA) apply to information generated by public officials.

FOI stipulates that all electronic information including email generated by employees on public computers must be retained and be accessible to the public.

These rules apply to public schools and other non profit organizations.

Email is subject to disclosure if it relates to a matter of public business and is not specifically exempt.

Freedom of Information ActRules States

State law implies that email is a public record but does not specifically mention it

AL, AK, CA, IN, KY, MO, MI, MN, MT, NE, OK, OR, SC, TN, VT, WA

State law specially states that email is a public record

AZ, AK, CO, CT, FL, GA, IL, ME, MD, MA, MO, NM, NY, NC, PA, RI, VA

State law exempts personal email UT, WV, DC

State law does not address the issue of email

DE, ID, MS, NV, NH, NJ, ND, OH, SD, WI, WY

Other HI request on case-by case basis

DE, ID, MS, NV, NH, NJ, ND, OH, SD, WI WY, TX email generally not public record. All requests analyzed and can be covered. Email sent from a personal email account on a government computer may be public.

Sunshine LawsBecky V Butte- Silver Bow School Dis 1 Public

writings defined as “documents generated or maintained by a public body which are somehow related to the function and duties of that body”

Email is implied to fall under the Acts purview as public record.

Individuals can sue to have decisions overturnedFOIA.org good resourcehttp://www.nfoic.org/montana-foi-resources

MT Sunshine LawSTATE LAW ON ELECTRONIC RECORDS

Electronic information is treated like printed information. Mont. Code Ann. § 2-6-110(1)(a).

- See more at: http://www.rcfp.org/montana-open-government- guide/iii-state-law-electronic-records#sthash.wPeFI8qy.dpuf

Lasko v DOJLasko v. DOJ, No. 10-5068, 2010 WL 3521595

(D.C. Cir. Sept. 3, 2010) (per curiam). The court finds that defendants' failure to produce records before a certain date "does not demonstrate that the searches were inadequate, because the failure of a search to produce particular documents, or 'mere speculation that as yet uncovered documents might exist,' does not undermine the adequacy of a search.'"

Lasko v DOJLasko v. DOJ, No. 10-5068, 2010 WL 3521595

(D.C. Cir. Sept. 3, 2010) (per curiam). The court finds that defendants' failure to produce records before a certain date "does not demonstrate that the searches were inadequate, because the failure of a search to produce particular documents, or 'mere speculation that as yet uncovered documents might exist,' does not undermine the adequacy of a search.'"

GARPGenerally Accepted Recordkeeping Practices (GARP)Under GARP public records such as student transcripts are covered by State records retention policies. Email is not the location for these records to be held such records should be kept in the system maintained for it (SIS or Assessment)Message archiving is not the platform to comply with GARP rules

GARP is designed to Facilitate and sustain day-to-day operations Support predictive activities such as budgeting and planning Assist in answering questions about past decisions and activities Demonstrate and document compliance with applicable laws, regulations, and standards

And is based upon 8 principles Accountability Integrity Protection Compliance Availability Retention Disposition Transparency

www.arma.org

GARPLessons from GARPRecords kept where they belong are then not

records in emailPolicy of retention for these documents does not

require email to be archived for these periodsHave a policy and enforce itEnronThink about how you may be able to make data

driven decisions or manage risk

Regulatory ComplianceMany information retention requirements

imposed by regulatory agencies such as the Securities Exchange Commission (SEC) and the Financial Industry Regulatory Agency (FINRA) Sarbannes Oxley (SOX) may apply to public and non profit organization as well.

Storage Management, Disaster Recovery & Green Initiatives or…

What’s in it for me?

Storage ManagementStorage of email consumes many gigabytes of

server capacity each year.Some hosted archiving solutions reduce storage

on email servers by “stubbing.”Making a copy of the email and/or attachments and

replacing it with a small stub fileAllows for user access to email

Journaling is not the same as archiving and can actually increase demands on storage

Disaster Recovery Backups only provide a recent copy for recovery in the event of disaster and

mail can be lost between backups. Offsite/safe storage of backups can cost money and time. Archiving often will provide:

Total data integrity Secure off site automatic storage Easy recovery of all email data at all levels: database, mailbox and

individual messages

Vital –“Records that are fundamental to the functioning of an organization”…”They contain information necessary to recreate an organization’s legal and financial status and to preserve rights and obligations of stakeholders”.

These records are needed to operate within the first 30 –45 days following a disaster.

Green InitiativesMore than 70% of all electronic information is never

printed.Email is the number one form of electronic

communication, surpassing the telephone.The easy search and retrieval capabilities of archiving

allow easy access of not just email but attachments as well, reducing the need for printing.

Hosted archiving solutions maximize data storage efficiencies. Fewer servers = lower power consumption

Risk Management

Archiving can help your district reduce the overall cost of lawsuits and FOI compliance by:Shortening the document production time resulting

in hard cost savings of internal staff timeAvoiding significant legal expenses or finesReducing overall cost of litigation

e-discovery represents 35% of the total cost of litigationPillsbury Winthrop Shaw Pittman LLP

Enabling early decisions as to liability/likelihood of victory

Reducing public relations damage from negative press

What Solution is Right for Me?

In House or Hosted?

HostedAdvantages

No special hardware or software requiredSecure off-site storageAbility to support mobile devices Total data integrity (personnel cannot alter or delete messages.)24/7 accessOne archive for multiple platformsCustomer/technical supportData center redundancy

DisadvantagesData not physically on-siteLimited customization

In House or Hosted?

In HouseAdvantages

Data on siteMay have ability to customizeCan be cost effectiveDistrict administrationCustomer/technical support with service contract

DisadvantagesData on-siteService contract can be expensiveMan power requiredMay not support multiple platforms or mobile devices

Learn More…Visit our website www.gaggle.netSend us an email hankd@gaggle.netGive us a call 1-800-288-7750

Thank You!