Best Practices for eDiscovery in Government Agencies

Electronic discovery isn't just a concern for big corporations or the large law firms representing them. Government agencies, like the fictional Parks and Recreation Department of Pawnee, Indiana, often engage in eDiscovery when responding to public records requests, subpoenas, civil cases, or FOIA inquiries.

Government entities face their own set of eDiscovery challenges. Officials must locate records from multiple departments, review sensitive or classified documents, and manage numerous eDiscovery requests due to the large volume of lawsuits and records requests they receive. With limited resources and vast amounts of data to process, it’s critical for government leaders to take a strategic approach to eDiscovery. By following best practices, government agencies can handle electronically stored information (ESI) efficiently and ensure a defensible process. Key practices include forming eDiscovery teams, using appropriate tools, and developing systematic approaches for handling data.

Step One: Forming an eDiscovery Team and Setting Up Data Policies

Government agencies should identify a lead or assemble a team responsible for managing eDiscovery when responding to legal or records requests. This team will work closely with attorneys, staff, and outside eDiscovery vendors. Whether it’s a single person or a larger team, the lead should be skilled in both IT and litigation processes, and also be an excellent project manager with strong communication abilities.

A typical government eDiscovery team might include:

• Attorneys or investigators: These individuals define the eDiscovery strategy, oversee data management, review documents for confidentiality, and communicate with legal opponents or records requesters.
• Administrators: They implement the processes set out by the attorneys and report on progress.
• Reviewers: Tasked with going through the collected data to identify relevant documents while checking for privileged or sensitive information.
• IT specialists: They ensure proper data preservation, handle collections, and maintain the chain of custody for the ESI.

The eDiscovery team should establish policies for data preservation and collection to ensure they can access ESI promptly, while also avoiding unnecessary data collection to save both time and money.

Step Two: Leveraging Technology for a Streamlined Process

Like private sector companies, government agencies have turned to outside eDiscovery vendors and tools to assist with managing data. Choosing the right tools based on the agency’s needs can significantly reduce both financial and labor-related costs.

Since government agencies are accountable to the public, they often need to follow a formal request-for-proposal (RFP) process when hiring vendors or purchasing technology. Agencies should adapt the RFP process to account for their specific eDiscovery needs, all while adhering to public bidding laws. Governments now have the option to manage much of the eDiscovery process in-house, thanks to advanced tools available in the market. When evaluating eDiscovery solutions, government teams should look for tools that are:

• Cloud-based, allowing remote access and collaboration across departments.
• Capable of syncing with agency data sources, minimizing time-consuming collections.
• Customizable to the agency’s needs.
• Supported by robust customer service for setup and troubleshooting.
• Transparent in pricing, without hidden fees.
• Scalable to meet fluctuating demands.
• Secure, with top-notch cybersecurity features that comply with government data storage regulations.

Step Three: Building a Defensible eDiscovery Strategy

Government agencies need a reliable and defensible eDiscovery strategy to back up their data productions in court. If an agency’s processes are insufficient, they could face increased litigation costs, or even risk disclosing sensitive or classified information.

Agencies should establish standard operating procedures for handling eDiscovery in legal cases or when responding to records requests. These processes provide a roadmap for employees and vendors to follow, helping agencies justify their actions if questioned. A solid, repeatable process is key to managing productions effectively and defensibly.

Key components of this strategy include:

• Utilizing technology-assisted review and predictive coding to ensure all relevant data is identified.
• Implementing quality control measures to avoid overproduction or the accidental release of privileged or sensitive materials.
• Establishing clear guidelines for redacting documents and managing privilege logs, in accordance with FOIA or relevant disclosure laws.

In addition, government eDiscovery teams should incorporate post-project reviews to continuously improve their processes. Staying informed about the latest advancements in eDiscovery tools, especially those incorporating AI and machine learning, will also help agencies optimize their workflows.

Conclusion

eDiscovery is just as critical for government agencies as it is for law firms or corporations. Whether in response to administrative cases, subpoenas, or public records requests, agencies need well-defined policies for managing data preservation, collection, review, and production. By implementing a repeatable eDiscovery process—complete with designated teams, standard procedures, and the right technology—governments can handle ESI more efficiently and effectively. This approach not only ensures compliance but also helps manage limited resources while meeting the demands of legal and records requests.