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Government Agencies No Longer Receive a ‘Get out of Jail Free’ Card When it Comes to eDiscovery

Organizations across the United States have steadily felt the sting of legal action involving eDisocovery as they are quickly discovering that it is no easy feat to comply with mandates such as the Federal Rules of Civil Procedur (FRCP). This is resulting in mounting sanctions and a steadily decreasing patience in courts towards eDiscovery mistakes. However state and local government agencies were conspicuously absent from this steady stream of eDiscovery rulings.

It is not entirely surprising that governmental agencies have a history of writing rules that apply only to the private sector while conveniently exempting themselves from these rules. Government agencies have historically had an entitlement mentality as it pertains to compliance by writing rules that everybody else has to follow while they grant themselves a “Get out of Jail Free” card. But as it pertains to eDiscovery this is no longer the case.

Government’s responsibility to comply with eDiscovery requests started in earnest when it was ruled that the SEC would have to comply with FRCP like any other litigant. DCIG blogged about this ruling earlier this year and highlighted the fact that this would change the way federal, state and local government viewed eDiscovery.

Since this ruling was handed down, I have continued to look for examples that show that government agencies are increasingly held to the same standards as private businesses when it comes to matters pertaining to the FRCP. Now a steady stream of cases involving state and local government agencies has been in the headlines in regards to complying with eDiscovery rulings.

The first was Mirbeau Geneva Lake v. City of Lake Geneva. In this case the defendant sought production of all “computers and electronic storage devices” for forensic examination. The Judge ruled the parties should have open and candid discussions regarding completion of discovery of electronically stored information (ESI). The Judge also stated that if destruction of relevant evidence occurred the court is willing to impose sanctions including terminating sanctions.

Next is Peschel v. City of Missoula. This case arose from a claim that the defendant was wrongly arrested and that the arresting officers used excessive force. Sanctions were sought due to the city’s failure to preserve the video of the arrest that was recorded by a camera located in the officer’s car. The Judge found the lost video was the result of recklessness and granted sanctions, and ruled that for the purposes of the case, it could be assumed the arresting officers used unreasonable force to affect the arrest.

Another case is Lake v. Phoenix. The Supreme Court of Arizona overturned a lower court ruling and affirmed that “if a public entity maintains a public record in an electronic format, then the electronic version including any embedded metadata is subject to disclosure under public record laws.

The bad news for local and state governments keeps coming with the case of Swofford v. Eslinger. This case against the Seminole County Sheriff’s Office ended with the Judge ruling “Defendant’s blatant disregard of their obligation to preserve electronic information” as evidenced by their deletion of emails despite receipt of plaintiffs’ request for preservation, the court imposed sanctions allowing the jury to infer that the deleted emails contained detrimental information in this case. An award of fees and attorney fees was also granted.

So in the span of a month there were several costly rulings against state and local government that will no doubt be damaging to the reputation and budgets of these agencies.

Further, government entities cannot longer rely on rising mill levies and increased sales tax revenues to bail them out of shortfalls in funding caused by electronic evidence spoilation through reckless actions, or non-existent eDiscovery processes.

State and local government agencies must learn from the lessons of the private sector and understand that without technologies such as Estorian’s LookingGlass and putting in place processes that enable them to respond to eDiscovery mandates such as Legal Hold, they are doomed to make the same mistakes that private companies have made and been penalized for making over the years.

It is time for government agencies to adopt an archiving solution such as LookingGlass. A proactive archive acts as a front line of defense in eDiscovery and serves as a reliable and cost-effective store to hold emails and their attachments for pending or anticipated litigation. Since email is now the preferred medium for communications by and between government agencies, it stands to reason that email archiving is no longer an option but a necessity for government agencies.

Government officials should realize that now is the time to introduce robust eDiscovery products and processes into their agencies. To ignore this important issue is to do so at their peril. Other government agencies across the country have already discovered the hazards of not having proper archiving process and, in so doing, have damaged their reputations while bringing financial hardships to the district citizens that they serve.

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