Overview Materials for EDRM Lunch-and-Learn Session
January 30, 2010
Overview materials for the Feb. 1, 2010 EDRM lunch-and-learn session are now available for download:
- Evergreen: Overview
- IMRM: Overview | Narrative
- Jobs: Overview
- Metrics: Overview | Case Study
- Model Code of Conduct: Overview
- Search: Overview
Overview Materials for EDRM Lunch-and-Learn Session
January 30, 2010
Overview materials for the Feb. 1, 2010 EDRM lunch-and-learn session are now available for download:
- Evergreen: Overview
- IMRM: Overview | Narrative
- Jobs: Overview
- Metrics: Overview | Case Study
- Model Code of Conduct: Overview
- Search: Overview
Personal Emails Retained by Public School’s Email System Not Subject to Michigan’s Freedom of Information Act
January 29, 2010
Howell Educ. Assoc. MEA/NEA v. Howell Board of Educ., 2010 WL 290515 (Mich. Ct. App. Jan. 26, 2010)
In this “reverse” Freedom of Information Act (FOIA) case, the trial court held that personal emails generated by and stored on a public school’s email system were public records subject to FOIA. Upon plaintiffs’ appeal, the appellate court reversed the trial court and held that such emails were not public records and thus not subject to FOIA. Moreover, the appellate court concluded that violation of an acceptable use policy barring personal use of an email system – “at least one that does not expressly provide that emails are subject to FOIA” – does not render personal emails subject to FOIA.
Intervenor/Counter-plaintiff Chetly Zarko submitted a series of FOIA requests seeking production of emails sent to and from three specific teachers beginning in January 2007 and emails between those teachers and an employee of the Michigan Education Association. The teachers were all members of and officials for Howell Education Association MEA/NEA (“HEA”). HEA objected to the release of “union communications” between the teachers arguing the emails were not “public records” as defined under FOIA. To settle the issue, plaintiffs sought declaratory judgment that the emails were not subject to FOIA, among other issues. The trial court held the emails were subject to FOIA. Plaintiffs appealed.
Michigan FOIA requires the disclosure of public records upon proper request. A “public record” is defined as “a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created.” [Emphasis added.] Defendants argued that the retention of electronic data was “an official function where it is required for the operation of an educational institution” and cited Michigan precedent in which the court held that the magnetic tape which was the school’s record of student names, addresses, etc. was retained in performance of an official function because the university could not have functioned without such a list of its students.
Rejecting the comparison, the court noted that defendants in the present case could “function without the personal emails” and that “given their very definition they have nothing to do with the operation of schools.” The court further rejected defendants’ argument that retention was sufficient to subject the emails to FOIA where the school district did not assert that the back-up system was purposely designed to retain and store personal emails or that such emails had an official function:
It appears that the system is intended to retain and store emails relating to official function, but that it is simply easier technologically to capture all the emails on the system rather than have some mechanism to distinguish them. We do not think that because the technological net used to capture public record emails also automatically captures other emails we must conclude that the other emails are public records. To rule as defendants request would essentially render all personal emails sent by governmental employees while at work subject to public release upon request. We conclude that this was not the intent of the Legislature when it passed FOIA.
The court went on to cite a federal case in which the court determined that the electronic calendar for the chairman of the SEC was not an “agency record” despite containing both business and personal information and being stored on the agency’s computer system. In that case, SEC employees were permitted limited personal use of their office equipment. The court in the present case found the personal emails at issue analogous to the chairman’s electronic calendar.
Recognizing the lack of permission for personal use in the present case as evidenced by defendants’ Acceptable Use Policy, the court nonetheless rejected defendants’ argument that the policy put users on notice that their personal emails were subject to FOIA:
Although the use policy certainly gives notice to the users that school officials may look at their email, and that the documents could be released pursuant to a subpoena, it in no way indicates that users' emails may be viewed by any member of the public who simply asks for them.
The court further rejected the argument that violation of the policy rendered the otherwise personal emails public records.
The court next decided that the emails at issue, i.e., emails involving “internal union communications” were personal emails and thus not subject to disclosure.
A copy of the full opinion is available here.
EDRM Metrics Overview and Case Study
January 28, 2010
In preparation for the Feb. 1, 2010 EDRM lunch-and-learn session at LegalTech, we have posted two EDRM Metrics documents:
EDRM Evergreen Diagrams PowerPoint
January 28, 2010
The full set of EDRM Evergreen diagrams is available in a downloadable PowerPoint file.
The file contains the main EDRM diagram and the following draft diagrams:
- Identification
- Preservation
- Collection
- Processing
- Review
- Analysis
- Production
- Presentation
- Project Management
Go to http://edrm.net/9 and select “The EDRM Framework Guide“
IMRM Diagram
January 28, 2010
We have added a draft Information Management Reference Model (IMRM) diagram to the IMRM page:
Look for explanations in upcoming posts, or stop by and see us at the EDRM lunch-and-learn session at New York Legal Tech, Mon., Feb. 1, 2010.
EDRM Metrics Cube
January 28, 2010
We have added a draft EDRM Metrics Cube to the EDRM Metrics page:
Look for explanations in upcoming posts, or stop by and see us at the EDRM lunch-and-learn session at New York Legal Tech, Mon., Feb. 1, 2010.
Court Finds Data “Not Reasonably Accessible,” Denies Motion to Compel
January 28, 2010
Rodriguez-Torres v. Gov. Dev. Bank of Puerto Rico, 2010 WL 174156 (D.P.R. Jan. 20, 2010)
In this employment discrimination case, the court found the electronically stored information (“ESI”) requested by the plaintiffs “not reasonably accessible because of the undue burden and cost” and that plaintiffs had failed to show good cause to compel production of the ESI and denied plaintiffs’ motion to compel.
Plaintiffs filed a motion to compel defendants’ production of “all email communications and calendar entries describing, relating or referring to plaintiff Vicky Rodriquez, both inbound and outbound from defendant GDB’s messaging system servers” for the years 2007, 2008, and 2009. Moreover, plaintiffs sought to compel such production “in native format with its original metadata…” Defendants objected and indicated that plaintiffs’ request was likely to produce “hundreds if not thousands of documents which will include irrelevant, confidential, and potentially privileged information.”
Prior to ruling, the court ordered additional briefing on the issue. The parties' submissions included a report from a consulting service indicating an approximate cost of $35,000 to retrieve the requested ESI. Defendants also indicated the need to perform a privilege and confidentiality review of the ESI prior to production. Accordingly, the court found the requested ESI “not reasonably accessible” reasoning that the proposed cost was “too high of a cost for the production of the requested ESI in this type of action.” Moreover, the court indicated its concern over the increased cost that would result from the need to review the documents prior to production stating, “the volume of such information along with the form in which the information is stored makes privilege determinations more difficult and, correspondingly, more expensive and time consuming.”
The court continued its analysis, however, noting that “under FRCP 26(b)(2)(B), the party requesting the information that is not reasonably accessible can still acquire the information if the requesting party shows good cause.” Attempting to show good cause, the plaintiffs indicated they expected to find “communications showing discriminatory animus such as derogatory and demeaning references, exclusion from meetings, communications and work activities, and general disregard for plaintiff Rodriguez’s abilities.” Their “only basis” for this belief was “three articles which suggest that e-mail encourages senders to write unguarded, unwise, and often inappropriate comments.”
The court found no good cause to compel the production and stated “the court determines that Plaintiffs’ request is merely a fishing expedition to find out if there is any evidence that supports their claim. Discovery is not meant to serve as a fishing expedition. As such the court concludes this is not good cause.”
A full copy of the opinion is available here.
Another Updated Level Two EDRM Evergreen Diagram
January 28, 2010
Here is one more updated level two EDRM diagram, this for Project Management:
Updated Level Two EDRM Evergreen Diagrams
January 28, 2010
As a pre-view of the materials to be presented at the Feb. 1, 2010 EDRM lunch-and-learn session at LegalTech, here are the updated level two EDRM Evergreen diagrams:
Identification
Aim: To identify subject matter experts, resources involved, potential sources of data; to determine the depth and breadth of potential liability; to aggregate information sources for developing course of action.
Goal: Evaluate, leverage and mitigate.
* Although represented as a linear workflow, moving from left to right, this process is often iterative. The feedback loops have been omitted from the diagram for graphic simplicity.
Preservation
Aim: When duty to preserve is triggered, promptly isolate and protect potentially relevant data in ways that are: legally defensible; reasonable; proportionate; efficient; auditable; broad but tailored; mitigate risks.
Goal: Mitigate risks.
* Although represented as a linear workflow, moving from left to right, this process is often iterative. The feedback loops have been omitted from the diagram for graphic simplicity.
Collection
Aim: When data needs to be used, collect potentially relevant data in ways that are: legally Defensible; forensically sound; proportionate; efficient; auditable; targeted.
Goal: Mitigate risks.
* Although represented as a linear workflow, moving from left to right, this process is often iterative. The feedback loops have been omitted from the diagram for graphic simplicity.
Processing
Aims: Perform actions on ESI to allow for metadata preservation, itemization, normalization of format, and data reduction via selection for review.
Goal: Identify ESI items appropriate for review and production as per project requirements.
* Although represented as a linear workflow, moving from left to right, this process is often iterative. The feedback loops have been omitted from the diagram for graphic simplicity.
Review
Aim: To gain an understanding of document content while organizing them into logical sub-sets in an efficient and cost effective manner.
Goal: Develop facts, reduce risk, reduce cost, leverage technology, facilitate collaboration and communication.
* Although represented as a linear workflow, moving from left to right, this process is often iterative. The feedback loops have been omitted from the diagram for graphic simplicity.
Analysis
Aim: To develop, facilitate, test and validate processes for handling e-discovery efforts.
Goal: Assess and understand ESI throughout the life of the case for the purpose of making educated decisions and developing a defensible, strategic plan.
Production
Aim: To prepare and produce ESI in an agreed upon and usable format.
Goal: Efficient production in compliance with agreed production specifications and timelines, reduce cost, reduce risk, reduce errors.
* Although represented as a linear workflow, moving from left to right, this process is often iterative. The feedback loops have been omitted from the diagram for graphic simplicity.
Presentation
Aim: Displaying ESI before audiences (at depositions, hearings, trials, etc.), especially in native & near-native forms, to elicit further information, validate existing facts or positions, or persuade an audience.
Goal: Develop facts, leverage technology, facilitate communication and persuade.
* Although represented as a linear workflow, moving from left to right, this process is often iterative. The feedback loops have been omitted from the diagram for graphic simplicity.