E-discovery, e-gov’s latest flavor

John Facciola, a magistrate judge at the U.S. District Court for the District of Columbia, is the court’s resident computer geek. He earned the title because he is a Mac enthusiast and skilled at digital photography. But his most notable technical expertise is in electronic discovery, which is changing how attorneys look for evidence and how agencies manage electronic records.

The government addressed e-discovery in amendments to the Federal Rules of Civil Procedure, published in the Federal Register in December 2006. The rules establish document-handling procedures that agencies must follow if they are sued, and the e-discovery amendments have created new challenges for agencies.

Before his current appointment, Facciola spent 15 years as an attorney in the Justice Department’s appellate and civil divisions. He also spent nine years in private practice, focusing on American Indian issues and criminal defense cases.

In the following interview, Facciola discusses the importance of e-discovery for federal agencies.

FCW: How does the court define e-discovery?
Facciola: One of the most significant aspects of the change in the federal rules was to include electronically stored information. Electronic records are now as much a part of a case as paper records. As storage capacity grows and becomes cheaper, the ability of systems to maintain and preserve massive amounts of information is a challenge. The newly amended federal rules tried to deal with that.

FCW: Have you seen tremendous growth in electronic records in the past decade?
Facciola: It happened rather suddenly, I think, primarily because technological change happened so rapidly. Electronic documents are scattered in quite a few places. We also have to deal with the problem of idiosyncratic recordkeeping people, who keep some or all or no records.

FCW: Why is e-discovery a concern now?
Facciola: I’ve seen estimates suggesting that at least 98 percent of all communications are electronic, and there are consequences for the legal system because of that. One challenge is storing that amount of information. The second is if we don’t have a well-thought-out and principled records management system in place, how in the world do we find what we’re looking for? 

A third problem, particularly from a government perspective, is that any given database or collection of information might contain material that is privileged. Maybe it is attorney/client privilege or a matter of national security. Those are big problems. How do we find within this massive database that which the government cannot divulge? How do we identify it?

FCW: Do employees use keyword searching?
Facciola: That is part of the problem. With keyword searching, you can miss things or, worse, you can get back much more than you ever want.

There is a lot in the literature about concept searching. The computer searches for a particular word, but it is also programmed to show a relationship between that word and other words. And you hope that process refines the search.

Federal employees who are called upon to search for documents must be familiar with retrieval techniques and the literature on search. 

FCW: How will the use of random sampling increase?
Facciola: An argument could be made that as discovery becomes more costly and difficult, lawyers will become less adversarial and more collaborative. They will agree on what information they need, and the savings will be tremendous. Others say we have no choice but to do random sampling.

Random sampling is a misnomer. We need to sample in a manner that is consistent with the science of statistics.

FCW: How should federal employees learn what records to keep and for how long?
Facciola: If you keep everything indiscriminately, you make the search for relevant records that much tougher. As the capacity of computers increases and storage becomes cheaper, you face the risk of the computer becoming a garbage can.

If agencies fail to use records management systems to manage their documents and eliminate information that is no longer needed for any purpose, then they have a problem. Information that can’t be discovered doesn’t exist.

FCW: How do the new federal rules affect agencies?
Facciola: The rules are a sea change. They are an acknowledgment that attorneys on both sides of a case have an interest in resolving document discovery problems before they get to court.

The rules couldn’t be clearer. Lawyers must get together and discuss the problems they’re having before they get to court. Federal employees responsible for records management must make certain the lawyer for the agency who goes to those conferences and has those discussions is fully informed about the agency’s recordkeeping systems.

We see lawyers getting into trouble when they underpromise or overpromise what they can produce. Either way, it hurts the lawyers’ credibility.

I’ve seen cases in which litigation was put on hold because the agency had a records system that automatically deletes information. Someone has to turn off that function as soon as they learn that litigation is imminent.

Lawyers can try to persuade the court to inspect a computer if they suspect that an agency deleted information. Investigators can use forensic tools to search a computer.

FCW: What changes did the new rules put in place?
Facciola: One thing the rules did was require attorneys for the parties involved in litigation to discuss specific document issues, such as formats. How are we going to produce the documents — through TIFF imaging? JPEG?

The attorneys must also reach agreement about privilege. A subset of data might contain privileged information. If a party hands over that data without objection, the party forfeits privilege.

However, lawyers for the two sides might yet arrive at an agreement. The attorneys might have an understanding that if one attorney turns over a file that inadvertently included information that is privileged, the other side would not be permitted to use that information in the case.

The new rules also set up a procedure by which one party can disagree about what is reasonably accessible.

FCW: How does the rule deal with metadata as part of the document?
Facciola: If you have maintained a document in its native format, that document will contain metadata. If you maintain a document in its original format and you give it to your opponent, the minute he opens it, it changes. So the question is, when you produce a document, you must do it in such a way that the metadata is visible. There’s no definitive answer for that yet. The federal rules do not address that issue.

You’ve got to approach such problems in a regularized fashion. You can see how an agency with a good records management system could find records more easily.