EC Baron DCC abridged

Can the Email Beast Be Tamed? A Progress Report on the U.S. Experience in Applying Best Practice Guidelines for Managing Desktop E-Records: 

Can the Email Beast Be Tamed? A Progress Report on the U.S. Experience in Applying Best Practice Guidelines for Managing Desktop E-Records Digital Curation Conference Workshop on Curating Emails: A Records Managament Approach Newcastle, U.K. April 24-25, 2006 Jason R. Baron Director of Litigation Office of General Counsel National Archives and Records Administration

Overview: 

Overview The importance of email U.S. records laws pertinent to email & e-discovery in the U.S. Best practices in email management thru a Sedona lens The search and information retrieval problem Additional sources

“Digital information lasts forever, or five years – whichever comes first”: 

“Digital information lasts forever, or five years – whichever comes first” --Jeff Rothenberg, senior computer scientist, RAND (1999)

THE IMPORTANCE OF BEING EMAIL Why so much attention?: 

THE IMPORTANCE OF BEING EMAIL Why so much attention? Email is candid Email is headline grabbing Numbers of emails are staggering Email includes attachments in all formats Email is ubiquitous

THE IMPORTANCE OF BEING EMAILWhy so much attention? (continued): 

THE IMPORTANCE OF BEING EMAIL Why so much attention? (continued) Cost of restoring email is extravagant Litigation risk is enormous should an agency find itself sanctioned for failing to produce email See Coleman Parent Holdings Inc. v. Morgan Stanley (Fl. Cir. Ct. 2005) (jury awarded plaintiff $604.3 million in compensatory damages and $850 million in punitive damages after defendant failed to produce backup tapes containing email) See Zubulake v UBS Warburg (S.D.N.Y. 2004) (award of $ 29 million in gender discrimination case to individual plaintiff in light of defendant’s failure to produce relevant emails and backup tapes)

It’s Not Just About Email: 21st Century E-Records in A Typical Workplace : 

It’s Not Just About Email: 21st Century E-Records in A Typical Workplace E-mail Integrated with Voice Mail & VOIP Instant Messaging Web blogs Webcasting Video conferencing Structured databases Thumb drives & new storage devices Remote PDAs, Blackberrys, etc. etc. etc.

The U.S. Supreme Court on Record Retention: 

The U.S. Supreme Court on Record Retention “’Document retention policies,’ which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business * * * It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances.” --Arthur Andersen LLP v. U.S., 125 S. Ct. 2129 (May 31, 2005)

The intersection of the U.S. records laws and E-Discovery: 

The intersection of the U.S. records laws and E-Discovery + As a baseline, the U.S. Federal Records Act requires appropriate preservation of all electronically stored information which falls within the definition of a ‘federal record’ + The existence of a valid record retention policy is a factor used by courts in considering whether to impose sanctions when hearing allegations of destruction of evidence

Lifespan of U.S. Federal Records: 

Lifespan of U.S. Federal Records The definition of what constitutes a federal record in the U.S. (44 USC 3301) allows for tremendous flexibility in what is considered to be “record” material, spanning from ephemeral records (retained for hours/days) thru to short term temporary (weeks/months), long term temporary (years or decades) to permanent records (forever) Problem: matching up the retention span of a spectrum of e-records (including e-mail) with the working life of information technology

NARA Email Policy: 

NARA Email Policy Email messages can be federal records under 44 USC 3301 If federal records, they need to be preserved in some form of recordkeeping system, paper or electronic, unless “transitory” (36 C.F.R. 1234.24) Agencies must manage the unique “electronic” email record, as it is only a “kissing cousin” of a hard-copy printout (Armstrong v. Executive Office of the President) General Records Schedule 20 allows for deletion of electronic versions of email on the desktop provided recordkeeping copy kept in either paper or electronic form

Transitory Email Reg: 

Transitory Email Reg NARA final regulations published in the Federal Register on February 21, 2006 (71 F.R. 8806) Email records appropriate for preservation for less than 180 days may be managed on live email systems and allowed to be deleted as part of automatic processes, without a user further needing to print out or electronically archive.

Impact of Technology on Industry —Snapshot 2006: 

Impact of Technology on Industry — Snapshot 2006 Using the agency email system for ERK Universe of proprietary products in the marketplace: document management and RMAs 5015.2 compliant products Scalability issues Utopia: RM without extra keystrokes Transitioning from paper to electronic systems: what to do with the legacy copies?

Slide14: 

The Sedona Conference Working Group on Best Practices for Electronic Document Retention and Production www.thesedonaconference.org

Slide15: 

The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production (July 2005 revision) The Sedona Guidelines: Best Practices Guidelines & Commentary for Managing Information and Records in the Electronic Age (Sept. 2005) www.thesedonaconference.org

Sedona Guideline 1: 

Sedona Guideline 1 An organization should have reasonable policies and practices for managing its information and records. hallmark of policies = reasonableness no single standard can fully meet an organization’s unique needs

Sedona Guideline 2: 

Sedona Guideline 2 An organization’s information and records management policies and procedures should be realistic, practical, and tailored to the circumstances of the organization.

Sedona Guideline 3: 

Sedona Guideline 3 An organization need not retain all electronic information ever generated or received. Absent a legal requirement that trumps ongoing policies in effect, organizations may routinely delete e-records and e-mail, IM, text messaging, voice mail, etc.

Sedona Guideline 3 (con’t): 

Sedona Guideline 3 (con’t) Absent a legal requirement to the contrary….. Organizations may recycle media retained for disaster recovery purposes Organizations may delete residual, shadowed, or deleted data Organizations are not required to preserve all metadata associated with e-records

Sedona Guideline 4: 

Sedona Guideline 4 An organization adopting an information and records management policy should consider including procedures that address the creation, identification, retention, retrieval and ultimate disposition or destruction of information and records.

Sedona Guideline 4 (con’t): 

Sedona Guideline 4 (con’t) Organization should define roles and responsibilities for program direction in administering records management policies Organization should consider the impact and potential benefits of technology on record retention Education and compliance emphasized

Sedona Guideline 5: 

Sedona Guideline 5 An organization’s policies and procedures must mandate the suspension of ordinary destruction practices and procedures as necessary to comply with preservation obligations related to actual or reasonably anticipated litigation, governmental investigation or audit.

“20 Questions” on Email Management : 

“20 Questions” on Email Management Does my organization have an email record retention policy? Does this policy require agency staff to print out email to save in hard copy official files? What percentage of staff comply with printing out email records for their files?

20 Questions (con’t): 

20 Questions (con’t) Do staff consider preserving emails in folders on the live email system (or in word processing files) to be the equivalent of archiving? How does such a practice advance the overall “knowledge management” of the corporate enterprise? How does the practice effect information retrieval when demands are made for access to email?

20 Questions (con’t): 

20 Questions (con’t) How many represented organizations here employ some form of document management application in place for the preservation of email? For those that answered yes, is your document management application also a records management application? (For a U.S. audience: is the software DoD 5015.2 compliant)?

20 Questions (con’t): 

20 Questions (con’t) For those organizations that answered yes to using a document management application, is this application being used enterprise-wide? Or just locally in selected offices? For all firms, how many utilize email systems with auto-delete functions? What’s the time period for auto-delete? Does your organization utilize auto-archiving?

20 Questions (con’t): 

20 Questions (con’t) For those organizations not utilizing document management systems or records management applications, what is holding your organization back (besides $$$)?

20 Questions (con’t): 

20 Questions (con’t) Has your organization issued a formal circular or notice memorializing its “hold” policy in the face of preservation obligations? Who are the key actors in your organization responsible for maintenance of the email live systems and disaster recovery operations? Who has authority to impose a hold or lift one, both for email and other e-records?

20 Questions (con’t): 

20 Questions (con’t) Is there an office in your organization responsible for ensuring that legal hold notices are issued on more than a one-time basis? How are new employees apprised of existing legal holds in effect? More generally, what email records management training is done?

20 Questions (con’t): 

20 Questions (con’t) Have you considered replacing your disaster recovery backup tapes with an online disk system? Have you ever held a meeting with a lawyer, records manager, and IT specialist present, to discuss how email and other e-records are preserved?

Excerpt from a recent U.S. “preservation order”: 

Excerpt from a recent U.S. “preservation order” "Documents, data, and tangible things" is to be interpreted broadly to include writings; records; files; correspondence; reports; memoranda; calendars; diaries; minutes; electronic messages; voicemail; E-mail; telephone message records or logs; computer and network activity logs; hard drives; backup data; removable computer storage media such as tapes, disks, and cards; printouts; document image files; Web pages; databases; spreadsheets; software; books; ledgers; journals; orders; invoices; bills; vouchers; checks; statements; worksheets; summaries; compilations; computations; charts; diagrams; graphic presentations; drawings; films; charts; digital or chemical process photographs; video; phonographic tape; or digital recordings or transcripts thereof; drafts; jottings; and notes. Information that serves to identify, locate, or link such material, such as file inventories, file folders, indices, and metadata, is also included in this definition. --Pueblo of Laguna v. U.S. 60 Fed. Cl. 133 (Fed. Cir. 2004).

Selected Proposed Changes to the U.S. Federal Rules of Civil Procedure: 

Selected Proposed Changes to the U.S. Federal Rules of Civil Procedure Scheduled to go into effect Dec. 2006: A new definition of “electronically stored information” New FRCP Rule 26 conference obligations Two-tier system for evaluating discovery with respect to ‘accessible’ and ‘inaccessible’ data

A Plug for Dealing With Search Issues In the Context of Real User Needs : 

A Plug for Dealing With Search Issues In the Context of Real User Needs Finding Responsive Needles in Haystacks of Data Maximizing Recall of Responsive Docs Weeding out False Positives Evaluating competing search products in the marketplace against some objective standard lawyers will embrace See Baron, “Toward A Federal Benchmarking Standard for Evaluating Information Retrieval Products Used in E-Discovery,” 6 Sedona Conference Journal 237 (2005)

U.S. v. Philip Morris et al.: 

U.S. v. Philip Morris et al. Civil lawsuit brought by Clinton Administration against tobacco companies in 1999 RICO case – racketeering allegation that companies have conspired since 1953 to defraud the American public as to the true health effects of smoking 8 month trial concluded in June 2005 (no decision yet)

U.S. v. Philip Morris – E-discovery: 

U.S. v. Philip Morris – E-discovery 1,726 Requests to Produce propounded by tobacco companies on U.S. (30 federal agencies, including NARA) for tobacco related records Along with paper records, email records were made subject to discovery 32 million Clinton era email records held by NARA – all closed to public at the time of discovery request, and thus U.S. government had burden of searching

Seeing Around Corners: In the future…: 

Seeing Around Corners: In the future… An explosion of new technologies, new storage formats, new types of records Better retrieval methodologies for data mining (finding all the needles without retrieving significant chunks of the haystack) The end of disaster recovery backup tape operations as we know them (replaced with mirrored online disk systems)

NARA’s New ERA:Electronic Records Archives: 

NARA’s New ERA: Electronic Records Archives NARA’s vision for the Electronic Records Archives: The ERA will authenticate, preserve and provide access to any kind of electronic record, free from dependency on any specific hardware or software, enabling NARA to carry out its mission into the future http://www.archives.gov/electronic_records_archives/index.html

NARA’s E-Records ChallengeUnder ERA: 

NARA’s E-Records Challenge Under ERA Take any type of record Created using any type of application On any computing platform From any entity in the Federal government, and Provide discovery and delivery to anyone with a legal right to access Now and for the life of the republic.

Additional Sedona Publications and Project Teams: 

Additional Sedona Publications and Project Teams “Best Practices for the Selection of Electronic Discovery Vendors: Navigating the Vendor Proposal Process” (July 2005 version on Sedona website, www.thesedonaconference.org) Sedona Commentary on “Email retention: Management and Archiving” in progress (draft forthcoming) Sedona Commentary on Search and Information Retrieval (draft forthcoming)

Additional E-Records and E-Discovery Resources on the Internet: 

Additional E-Records and E-Discovery Resources on the Internet NARA website www.archives.gov DoD 5015.2 www.archives.gov/records-mgmt/resources ERA www.archives.gov/era Ken Withers www.kenwithers.com (e-discovery case list) Sedona Conference www.thesedonaconference.org

Slide41: 

Jason R. Baron Director of Litigation Office of General Counsel National Archives and Records Administration 8601 Adelphi Road Suite 3110 College Park, MD 20740 (301) 837-1499 Email: jason.baron@nara.gov