Six months after the federal government issued new rules governing the preservation of electronic communications that might become involved in legal disputes, an informal survey of K-12 school districts suggests that most schools remain unprepared to meet the requirements.
The survey, by the data-management company CommVault, found that 80 percent of those questioned were unclear about their district’s policies for retaining electronically stored information, including eMail and instant messages.
And while two-thirds of IT administrators responsible for managing backup data and archived messages in their districts said they were aware of the relevant Federal Rules of Civil Procedure (FRCP), which took effect in amended form on Dec. 1 (see Ruling: Schools must archive eMail), 90 percent said they had yet to initiate an FRCP compliance preparedness plan.
The rules state that any entity involved in litigation must be able to produce certain “electronically stored information” (ESI) during discovery–a process in which opposing sides of a legal dispute share evidence before a trial. In school technology departments, especially where technicians routinely copy data over backup disks and other information housed on school servers, the rules may call for a reassessment of policies and procedures.
While many state and local policies have long made clear which printed documents must be retained, under what circumstances, and for how long, schools now must consider what to do with electronic information that might be required in court cases.
Based on its informal poll, CommVault sees a marked disconnect between school leaders’ awareness of the issues surrounding FRCP compliance and their preparedness for potential lawsuits. The company says school districts could be exposed to costly legal actions if they fail to manage electronically stored information appropriately under the new federal requirements.
The amended rules amount to “an urgent call to action for educators and school information technology officers to understand how information that is sent and received on school-owned equipment might be used in litigation,” said Mike Ivanov, senior director and head of CommVault’s Archive Center of Excellence.
“The cost of litigation can run into the hundreds of thousands of dollars, potentially draining public school districts of valuable education funds,” he asserted. “To reduce the impact of such threats, school technology leaders need to become students of these new rules themselves and take stock of their eMail policies and existing technologies to ensure compliance.”
To keep tabs on eMail, instant messages, and other digital communications produced by employees and students, school leaders should reevaluate their digital storage technologies and how they search through and retrieve information, he said.
“What makes it more challenging for schools is their budgets,” Ivanov added. “Budgets are so slim in the first place that it’s hard to carve out significant dollars.” Still, he said, money invested in a storage solution likely would be less than the money spent if a school district did not have a solution and had to address a legal issue.
Although CommVault’s survey showed an increased awareness of the need for compliance policies and solutions, school leaders appeared to be unsure how to comply and where to place emphasis when developing a strategy for legal discovery.
The resulting confusion has left some school officials wondering whether they must now retain a lot more information in digital form than they have in the past, when only printed documents were saved in certain circumstances. The costs involved in wholesale retention could be prohibitive, they say.
But according to Lisa Soronen, senior staff attorney at the National School Boards Association, the new federal rules do not mean categorically that every last bit of electronic material must be retained. A key point, she said, is that school districts need policies that make clear what documents must be saved and when they can be safely discarded.
But if schools are facing the prospect of litigation, Soronen added, the rule of thumb ought to be: Save it. Generally speaking, she said, “everyone has an obligation not to destroy information” involving official school business, at least for a specified period of time. She suggested that well-crafted policies could go a long way toward helping school IT administrators know what they should and should not do.
“After the FRCP amendments went into effect, we realized that we needed to better track the eMails between faculty, parents, and the administration within our district,” said Jay Attiya, network manager of Middletown Township School District in New Jersey. Attiya said his district’s attorney told him that Middletown Township needed to begin archiving electronic information.
The district is using CommVault’s Archive solutions to address FRCP compliance. Besides archival software, which can help organize and retrieve electronically stored information, Attiya said districts should consider what hardware they might need for storage.
“The confusion sometimes is understanding the technology of doing it, and the best thing [school leaders] can do is talk to peers who are doing it or who have investigated it,” he said.