National and local government agencies are often overlooked, but they also have needs | IproTech
[author: Doug Austin, Editor of eDiscovery Today]
When people write about organizations that need eDiscovery solutions, we think of law firms, corporations, service providers, and government agencies. But when people write about government agencies and their eDiscovery needs, the discussion almost always turns to federal government agencies.
State and local government agencies aren’t often the subject of articles, but there are a large number of such agencies across the country, and they have as many eDiscovery needs as any other organization. Here is an overview of some of the eDiscovery considerations for state and local government agencies and they compare to those for federal government agencies.
State eDiscovery Rules
One of the biggest differences between state and local government agencies is the rules that govern discovery for them. Most cases involving these agencies are conducted and adjudicated in state courts, meaning they are subject to state discovery rules instead of federal rules. This means that the rules are a bit different in each state, although most states’ eDiscovery rules for civil procedure are modeled after the federal civil procedure rules.
However, some state eDiscovery rules even predate the 2006 changes to the federal eDiscovery rules. For example, my state (Texas) enacted Tex. A. Civil. P. 196.4 in 1999 to deal with the production of “data that exists in electronic or magnetic form”. You can tell an eDiscovery rule is old when it refers to “magnetic” data!
Texas has four other rules of civil procedure and two rules of evidence that address eDiscovery considerations. Here are all of them:
Texas Civil Procedure Rules
Texas Rules of Evidence
Because many cases may include evidence produced in multiple states, the best resource for all eDiscovery rules – state or federal – is eDiscovery Assistant (which is an Affinity Partner of eDiscovery Today). It’s a paid site, but it contains not only rules, but also thousands of eDiscovery case law decisions (this is my source for eDiscovery case law), checklists, and forms you can use, and a glossary of legal and eDiscovery terms.
If you’re looking for a free resource, Shook Hardy & Bacon also offers a state rules PDF here, last updated in February.
As is the case with federal government agencies, the procurement process for eDiscovery services and software for state and local government agencies is highly formalized, typically through a request for proposals (RFP) process. Government agencies of all kinds are generally expected to be very transparent about their procurement process, so these tenders are often publicly available.
An RFP for state or local eDiscovery services and/or software typically includes several sections, such as: 1) timeline for the process (including RFP issuance date, pre-proposal conference, receipt of bids and contract award), 2) scope of work/technical specifications, 3) description of the evaluation and selection process, 4) proposal submission and formatting requirements and 5) general instructions to tenderers.
A great example of what an eDiscovery RFP looks like for a local government agency is one that my hometown – the city of Houston – put out last year.
Types of cases and projects
The types of disputes involving state and local government agencies vary widely, just as they can for any government agency. They can include claims for challenging statutes and ordinances, miscellaneous torts, copyright infringement cases, harassment, and construction law cases. You will also see more criminal cases here and these cases more frequently involve evidence from mobile devices and even Internet of Things (IoT) devices.
State and local government agencies also have the same information governance and eDiscovery considerations as most other organizations, so they need solutions to support archiving, compliance, and investigation activities. informations. Surveys are most common for all types of government entities, including state and local government agencies. This IPRO article discusses how legal technology can help government agencies meet information archiving, compliance and investigative needs.
The great equalizer today for state and local government agencies is the cloud, which has put these agencies on a level playing field with their federal counterparts. Unlike federal government agencies’ requirement for vendors to be authorized by FedRAMP, providing data services in a secure cloud environment, state and local governments have no such requirement. The City of Houston RFP mentioned above exemplifies what state and local agencies are looking for today with this statement: “The city strongly prefers a cloud-based deployment (i.e. hosted)”!
State and local government agencies have many of the same eDiscovery and information governance needs as federal agencies or other organizations. And many of them conduct these disciplines in the cloud today. Do not forget them !