By Monica Bay
With the upcoming 2016 elections looming, which will result in a change of federal leadership, it’s not surprising that even the most confident government e-discovery professional may be a bit queasy. With a new President enroute, it’s hard to get-to-yes for any significant changes to people, process and technology—making it even more difficult for government e-discovery teams to meet the demands and obligations they face.
That reality was an undercurrent at the final 2015 LexisNexis Federal E-Discovery Think Tank meeting, held Dec. 10 at The National Press Club in Washington, D.C.
The Think Tank kicked off at the same venue on June 10, and continued over the year with four hour-long virtual sessions. Topics have included evolving best practices for: form of production requests, budgeting and spending proposals, advancing an e-discovery track force, information governance.
The over-arching goal has been to help government professionals in e-discovery share their knowledge, challenges and successes—and in the process, create alliances and develop best practices. Participants have included federal, state and regional government professionals.
The December half-day conference wrapped up the “best practices” agenda and discussed strategies for success in the turbulent time ahead. Leading the discussions were David Cowen, president and managing director of The Cowen Group; John Facciola, retired U.S. District Court Magistrate Judge (District of Columbia); Jason R. Baron, of counsel at Drinker Biddle & Reath and former director of litigation at the National Archives and Records Administration; Wendy King, associate general counsel, Executive Office of the President; Juliet Hanna, Associate General Counsel at Fannie Mae; and Debra Moe, Division Counsel, Small Business/Self-Employed Division, Office of Chief Counsel at the Internal Revenue Service.
A key issue for all e-discovery teams is that the game itself has changed. On Dec. 1, the 2015 amendments to the Federal Rules of Civil Procedure were approved, so there are new rules to understand and follow.
“The amendments to the FRDP—with the emphasis on proportionality and cooperation— will challenge government lawyers to get and use the technology that will require them to make much earlier analysis of what data they have and what they will need,” said Facciola.
“The newer technology makes this easier and more efficient, but learning that technology presents a challenge to the way all government agencies and their counsel adapt to new technology, learn its nuances and use it most effectively. The days of lawyers saying “I don’t do math” are over. They will have to learn a whole new way of thinking of how they search for and assemble their productions in discovery,” he said.
“Bar rules are changing to require attorneys to understand and be knowledgeable about their client’s technology,” observed Daniel Ellenbogen, senior attorney at the U.S. Postal System. “As the FRCP evolves, the role of technology will only become more prominent.
The discussions covered a broad range of People, Process and Technology issues. As for people, with the elections so near, “staffing is difficult,” observed King. IT challenges can be particularly daunting, she said.
Not all, but most government agencies have minimal budgets and miniscule head counts. That can make the proverbial playing field mighty uneven when facing litigation against highly-monied opponents with seemingly endless personnel. One attendee, an attorney with expertise in e-discovery, says its crucial to follow metrics and be aware of the “landscapes.”
One option for agencies with heavy litigation may be to create external contract teams that can be called upon for specific assignments without joining the unit full-time, he suggested. That can help “create trust, so you will get the right results, and solve more with what resources you have.”
Another money tip, from Glenn Melcher, special counsel at the Consumer Financial Protection Bureau, was cited by an attendee: If you are purchasing technology, be sure to include training in the package, said one attendee. Otherwise, it’s unlikely that you will be able to get it approved as a standalone item.
A huge problem for smaller governmental agencies is FOIA—The Freedom of Information Act that gives citizens the right to access information from the federal government. According to its website, foia.gov, there were 714,231 requests in 2014, and a current backlog of 159,741 for those requests.
Jeffrey Parrillo, the VHA FOIA Officer at the Department of Veterans Affairs, explained that the lack of appropriate technology makes it difficult for government agencies to deliver the requests. In many cases, he said, documents are produced manually. A case in point: Patricia Weth, attorney-advisor at the National Labor Relations Board, said she creates a spreadsheet on Microsoft Corp.’s Excel to process the requests.
Baron and Facciola were among the many who called for “a culture change,” citing the need to stop working in silos and to collaborate more actively with other federal e-discovery staff. Said Facciola, everyone needs to make “reasonable efforts to come together” (as the Beatles preached.)
Baron praised workshop series: “Participants discussed the top challenges they have in improving the e-discovery workflow at federal agencies, and what works and doesn’t work in their advocating for needed resources. The unique format allowed everyone at the workshop to get a chance to share their experiences with various thought leaders, including retired Magistrate Judge John Facciola,” he said.
“The session confirmed for me that there is a hunger for technology that serves to integrate e-discovery, FOIA, and recordkeeping workflows,” said Baron. “I am hopeful that participants in these types of forums will bring that message back to senior executives in their respective agencies.”
The next event will be held in February. For information, email email@example.com or firstname.lastname@example.org.
Attorney Monica Bay is a Fellow at CodeX: The Stanford Center for Legal Informatics, a freelance journalist and a special consultant at The Cowen Group.
The government speakers’ comments were their own and do not necessarily reflect the views of their agencies.