SCHOOL

DISTRICTS,
DATA
THE CASE FOR
RETENTION
AND
A FULL EMAIL
FEDERAL
EDISCOVERY
ARCHIVING
RULES: SOLUTION NOW
A WHITE PAPER PRESENTED AS A SERVICE
BY THE CONSORTIUM FOR SCHOOL NETWORKING
JUNE 2008

EXECUTIVE SUMMARY Do YOU know what ‘e-discovery’ means?

If you’re involved in K-12 technology, then you’ve probably heard a lot of talk lately about data retention,

email archiving, and eDiscovery. These are issues that many districts are struggling to understand and address.

Recent changes in Federal Rules of Civil Procedure (FRCP) reflect the legal system’s recognition of our

movement into a Digital Age, where email has become the preferred method of business communications.

And that goes for the business of education as well. School technology leaders failing to educate themselves

on the basics of such issues as eDiscovery, data retention and comprehensive email archiving – and their

implications – lay their districts vulnerable to costly legal sanctions and fines. eDiscovery Defined.

In December 2006, the Supreme Court made changes to the FRCP. These are the legal rules that dictate

what happens in federal civil cases and how discovery of information and materials relevant to civil cases is

conducted. Under the rule change, all electronic information – including email and instant messages – is

subject to legal discovery. Failure to produce such documents may lead to sanctions, including monetary fines

and adverse court rulings in the underlying case. eDiscovery changes to the FRCP imply that the courts now

believe adequate technologies exist and are available to manage the archiving and recovery process.

Passing the Test of Reasonableness. The new rules may excuse those involved in a lawsuit from

producing electronic information if production would be unduly burdensome or costly. Additionally,

organizations may be protected by the courts if the documents requested are unavailable because they were

deleted in good faith through routine operation of an electronic information system (with established and

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documented deletion schedules). Although left unstated in the rules, many commentators believe that in

order to qualify for this protection, any such data retention policy must be reasonable. Nonetheless, this rule

change can and should be read as a mandate for all school districts to develop rules for and commence using

an email archiving system that passes the test of reasonableness. To be sure, consult your legal counsel to

determine the exact length of time that electronic communication and other data types should be archived.

What to Watch For. Notably, the new rules apply broadly to all electronic data that could be considered

evidence, but the rules don’t offer specific definitions. Nonetheless, they very well may include digital drafts of

correspondence, grant proposals, and contracts. They may further cover multimedia (e.g., PowerPoint

documents), Excel spreadsheets, server log files; voicemail, and even Student Information System transactions.

While the new rules only apply to federal cases, state courts often follow suit. Expect the same civil procedure

rules to come to your local court system. Legal implications, policy issues, technology challenges, and budget

constraints must be confronted to ensure that your district is in compliance. An Urgent Issue. Indeed,

there is an urgency to address these issues, as no one wants to be a legal test case. To make matters worse,

no clear guidelines exist to help school districts know exactly what needs to be done. Further, there may be a

false idea that a monthly back up system is as reliable as a primary, comprehensive archiving solution. The two

are not the same. Without the ability to ensure a complete archive, such evidence as derived from a monthly

back up system can be incomplete, inaccurate, subject to alteration and may not hold up under legal scrutiny.

True archiving, on the other hand, can provide extensive search and retrieval functionality. Finding the required

messages can then be done in minutes (vs. weeks) – and ultimately costs far less. This white paper will attempt

to explain to school district and IT leadership the changes to the federal rules, the need for a complete email

archiving solution, required policy changes, and successful approaches taken by other districts. Increasing your

awareness in this vital area is a first step to your success.

This executive summary is provided as a service to the K-12

educational technology community. Full copies of the report are
avialable as a benefit to CoSN institutional and corporate members.
To become a member, please contact:
Consortium for School Networking (CoSN)
1025 Vermont Ave NW, Suite 1010, Washington, DC 20005
ph 202/861-2676 . fx 202/398-2011 . email info@cosn.org

NOTE: Consortium for School Networking is not hereby providing legal advice.
Circumstances and contributing factors may vary by district, municipality and state.
Check with your counsel for specific guidance.
© 2008 Consortium for School Networking. All Rights Reserved.

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