Email Archiving Requirements For Schools and Local Governments
By Roger Matus, Executive Vice President
Sean True, Vice President of Research and Development
Chuck Ingold, Principal Research Engineer
Safecore, Inc.

Public schools and local governments may have more stringent requirements than most businesses for email archiving and electronic discovery. Yet, with their limited budgets, schools and local gov­ernments are often the least equipped to respond.

The newly revised Federal Rules of Civil Proce­dure define how email must be handled in federal court cases. Businesses tend to think that the FRCP focus is on interstate lawsuits. Schools and governments, however, also need to be concerned with emails relating to federally funded activities or any activity governed by federal legislation.

In addition, schools and local governments have the burden of responding to (1) requests under open meeting and Freedom of Information Act laws, (2) offensive emails or those with sexual con­tent involving students, and (3) emailed threats.

During a 45 day period in 2007, schools and local governments had to deal with the following:

  • Emails between Board members made news in Palo Alto, CA, Nashua, NH, Alamogordo, NM, and Pine Bush, NY…
  • Offensive emails or emails with sexual content were in the news in Fresno, CA, Cape Coral, FL, Bainbridge, IN, and Edmonds County, WA…
  • Threatening emails locked down schools or caused students to be removed in Batavia, IL, Canon City, CO, Douglas County, NV, Can­ton, OH, and Appleton, WI. In Canton, OH, roughly 1000 students were evacuated after a secretary received an email bomb threat.

Dealing With Limited Resources

Email is extremely valuable in litigation because it contains off-the-cuff, unguarded comments writ­ten at the time of the event. It is difficult to refute email in court, even when taken out of context.

Because it is so valuable, the volume of email discovery requests (search) is likely to increase substantially. These requests will be an added bur­den to schools and local governments, which often have limited resources with which to respond.

Unfortunately, the courts are taking a dim view of organizations that cite lack of resources as a reason for not meeting tight deadline requirements…

A number of courts state that “evidentiary and monetary sanctions” or “spoliation sanctions” are appropriate for a party’s “reckless disregard of its duty to preserve relevant evidence” (United Med. Supply v. U.S., July 2007) or “a willful indifference … with respect to fulfilling its discovery obliga­tions in the early stages of this litigation” (Google v. Am. Blind & Wallpaper Factory, July 2007).

Since the requirements for email archiving and electronic discovery are becoming better known, it is now clear that schools and local governments are exposed to significant liability and risk if they do not take action to prepare for email archiving and electronic discovery. The question is what is required and what is just hype?

The Federal Rules of Civil Procedure

While the details of the Federal Rules of Civil Procedure can be complex, there are two primary issues for which schools and local governments need to prepared: centralized collection of email in an appropriate manner and litigation hold.

The newly revised Federal Rules of Civil Proce­dure call for an exhaustive search for all electroni­cally stored information (ESI), including email, which is “in the possession, custody, or control of the party.” It must be disclosed “without awaiting a discovery request” (Rule 26(a)(1)). Privileged information, such as attorney-client communica­tions, may be excluded.

Most legal experts believe that this provisions means that if even one member of the faculty, staff, administration, or Board has a copy of a relevant email on a laptop or home PC, then it is “in the possession, custody, or control of the party.” The email must be found quickly and disclosed.

Most organizations believe that an email archiving system with a significant search capability for electronic discovery is a prudent approach, since the alternative may be to collect every PC to copy its email files when a discovery request comes in.

It is hard to answer the question, “how long do I need to archive emails?” The Federal Rules of Civil Procedure do not specifically require any organization to save anything, except for the liti­gation hold provisions discussed later. Therefore, it also does not provide a time limit. However, if anyone keeps an email that is relevant to a court case, you must be able to produce it no matter how old it is.

It is a bad idea to believe that all copies of an email can be destroyed by policy. Employees can save a copy of an email on a PC or in their own archive in violation of policy. Deleted emails may remain in the “Deleted Items” folder. All of these are discoverable and must be disclosed.

The conclusion reached by most IT people is that a centralized archive is the easiest way to meet the search requirement. In addition, a centralized archive allows IT to save messages completely in­tact and to reduce the risk of tampering. The best systems will allow attorneys and administrators to make requests and export results without involv­ing the IT department.

Litigation Hold

FRCP Rule 37(f) protects organizations from sanctions for deleting email as part of “routine, good-faith operation.” This so-called safe harbor provision protects organizations that delete email as part of ordinary activities. It does not eliminate the exhaustive search requirement.

However, the organization must put in place pro­visions to prevent the deletion of any document that could be relevant as evidence in the case. For example, everyone must place a “litigation hold” on documents and email to prevent any evidence from being destroyed if litigation is “reasonably foreseeable.” Some good indicators that a litiga­tion hold is required are as follows:

  • A formal complaint, subpoena, or notification of a lawsuit is received.
  • Somebody threatens litigation, even verbally by saying, “I am going to sue.”
  • A regulatory or governmental body starts an investigation.
  • An attorney or third-party investigator re­quests facts related to an incident or dispute.
  • An incident takes place that results in injury.
  • An employee makes a formal complaint to management, especially when related to per­sonnel issues…

FOIA and Open Meeting Laws

Unlike the Federal Rules of Civil Procedure, it is likely that state Freedom of Information Act legislation and Open Meeting laws (sometimes dubbed “Sunshine Laws”) require email archiving by most public schools and local governments.

All 50 states have FOIA or Open Meeting laws. In most states, emails involving public business are specifically considered to be public records.

For example, the California Public Records Act specifically includes the phrase “transmitting by electronic mail” in the definition of a public re­cord. An Arkansas judge ruled that simply the act of sending an email to a government email address means that there is “no expectation of privacy.” (June 2007) A summary of specific state details can be found in the Open Government Guide at http://www.rcfp.org/ogg/.

Open Meeting laws, such as California’s Brown Act, specifically cover Board meetings and meet­ings of other governmental bodies. It is generally agreed that emails among a majority of Board members are public documents because they constitute a quorum of members. This is also true for most governmental boards and committees. (Most rules provide specific exceptions for certain personal and medical records as well as pending litigation.)

The Nashua, NH School Attorney had just days to release 198 pages of email messages between School Board members from February 1, 2007 and March 8, 2007 in response to a request from the Nashua Telegraph.

“The school board’s private attorney, Tom Closson, agreed (that) emails among a majority of board members were public documents and would be provided but said exchanges between individual board members, or anything representing less than a quorum, weren’t going to be released,” the Nashua Telegraph reported.

Public Records and Penalties

The majority of states have specific requirements for preserving public records. Therefore, it is likely that an email archiving system is mandatory for most schools and local government bodies.

The real impact of these requirements is due to the time limits involved and the fines that can be assessed for violations. For example, in South Carolina, “person in possession of a public record who refuses or fails to deliver as required in this chapter the record to the requesting party is guilty of a misdemeanor and, upon conviction, is fined not exceeding five hundred dollars.”

The time limits can be very short. Some states allow just three days for a response. New Hamp­shire says that if information is not available for immediate inspection, then “within 5 business days of the request, (they shall) make such record available, deny the request in writing with rea­sons, or furnish written acknowledgement of the request and a statement of time reasonably neces­sary …” It also provides remedies to “any person aggrieved by a violation of this chapter.”

Massachusetts statute permits 10 days to respond. However, courts have ruled that the time period may be shorter if the requestor “can demonstrate a compelling need for earlier disclosure” (Globe Newspaper v. Commissioner of Education).

Proactive Monitoring

While there are no specific requirements to proac­tively monitor email messages, email is often the first sign of a potential liability. In the areas of in­appropriate sexual relationships as well as threats of violence, proactive real-time email monitoring may reduce the risk to students, faculty, and staff.

For example, bomb threats have been sent to administrators via email. So far, the threats have been dealt with quickly. But, what would happen if the administrator was occupied or out ill for the day? Content monitoring systems can identify risky messages and route them to appropriately.

Conclusion

The combination of the Federal Rules of Civil Procedure and State FOIA / open meeting legis­lation create unique requirements for schools and local governments in all 50 states.

The two requirements work together for schools and local governments. As a result, an email archiving and retrieval system may be required. Storage, discovery, and litigation hold should be handled in conformance with the FRCP and retrieval should allow for the speed and export required by FOIA and open meeting legislation.

In addition, deploying real-time content monitor­ing to the system that is already processing email messages adds a significant level of protection without significant additional cost. Such a system can provide early alerts to cases of student harass­ment and threats of violence.

An ideal system integrates email archiving, elec­tronic discovery, and content monitoring. Such a system can provide significant protection that reduces liability and risk. Email would need to be touched only once, responses to requests can be faster, and the results will be consistent across the federal, state, and proactive monitoring requirement.

Source: http://www.inboxer.com/downloads/Brochure_InBoxer.pdf