With the stroke of a pen, the Obama administration has ushered the federal government into the Digital Age. On November 28, the President issued a memorandum mandating new rules, procedures, and deadlines for overhauling the government’s record management system, kick-starting the federal government’s transition to a digitized recordkeeping environment.
In what the memorandum describes as “a 21st-century framework for the management of Government records,” 480 federal agencies will be required to begin the migration to electronic recordkeeping, creating better management systems for emails, social media, and cloud-based information.
President Obama expects the effort to start immediately. The memorandum gives agency heads 120 days to submit a report to the Office of Management and Budget (OMB) detailing their plan to improve records management. The OMB will then have 120 days to review the plans and issue specific steps that each agency must take to reform recordkeeping.
Why the Digitization of Government Records Matters
The National Archives and Records Administration (NARA), the agency responsible for overseeing the new initiative, estimates that in the last decade, the government’s collection of paper records has grown by 475 million pages each year. However, as NARA’s 2010 Records Management Self-Assessment Report revealed, agencies’ records management programs “do not ensure that email records are preserved in a recordkeeping system” and “do not monitor staff compliance with email preservation policies.” In fact, many agencies “have policies that instruct employees to print and file email messages.”
These practices hinder the government’s ability to meaningfully store and share information. Citing the possibility of higher costs and lost records under the current regime, the President asserted that “when records are well-managed, agencies can use them to assess the impact of programs, to reduce redundant efforts, to save money, and to share knowledge within and across their organizations.”
The President’s directive is a move in the right direction. But is it enough?
The E-Discovery Problem
For years, e-discovery, the collection and sorting of electronically stored information in anticipation of and during a lawsuit, has been a nagging issue for government agencies. Under the government’s current paper-based system, the volume of documents makes e-discovery time-consuming and expensive. It also makes it challenging for the government to comply with the Federal Rules of Civil Procedure.
The memorandum discusses the need to improve records management policies and practices to support “agency compliance with applicable legal requirements related to the preservation of information relevant to litigation.” Perhaps the memo is referring to a recent high-profile False Claims Act case, United States v. Honeywell International, Inc.
In that case, Honeywell has accused the government of destroying countless records due to a failure to issue a legal hold preserving documents relating to the company across 36 agencies. Honeywell describes the facts of the case as “a well-documented tale of recklessness and gross mismanagement in the Government’s discovery processes.” Among other things, the government is accused of destroying hard drives that contained data and allowing fact witnesses to search their own electronic and paper records without lawyer supervision.
This case showcases the critical need for carefully managed document retention policies. The current system renders the government unable to provide required evidence in litigation, leaving it vulnerable to sanctions for spoliation of evidence. Moreover, the government’s record of failing to meet e-discovery obligations particularly vexes individuals and corporations who have been held to a high standard in responding to these agencies’ burdensome e-discovery requests.
Meeting the Digital Recordkeeping Challenge
Unfortunately, time is not on the side of agency stakeholders for developing and implementing electronic recordkeeping reforms. Federal agencies are facing a time crunch that they cannot meet if they rely exclusively on internal resources. The government will need to consider the help of external partners to meet key implementation deadlines.
In addition to carrying part of the digitization workload, external e-discovery companies in the marketplace today can bring a high level of expertise to the task. Though NARA has developed an electronics archive that currently stores 124 terabytes of data–enough to store more than 12 copies of the entire collection of the Library of Congress–its search capabilities are limited. Users can only search records’ metadata, such as title, date, and originator.
Even basic technology used by e-discovery providers allows full-text and Boolean searching to identify records that contain key words or phrases. Many providers also utilize technology capable of robust metadata searching; some have developed even more advanced technology, including early case assessment, data analytics, and algorithmic searching.
E-discovery providers can also assist the government comply more readily with discovery requests and minimize the risk of court-imposed sanctions. Ironically, many advances in e-discovery were developed to help targets of massive e-discovery requests issued by government agencies find efficient ways to cull through millions of e-mails and other electronic documents. Now, this technology can prove useful to agencies facing the burden of responding to similar requests, particularly in cases involving a high volume of duplicative data or custodians involved in multiple cases.
To achieve the objectives in the memorandum, the government should solicit help from experts in the field. By relying upon e-discovery providers, the government will maximize its gains from this shift to electronic records management and ensure the continued usability of its electronic data.
Rob Hellewell is an attorney and vice president of electronic discovery in the Washington, D.C. office of Applied Discovery, a division of LexisNexis.