“Discovery” is the exchange of documents and information between parties in litigation, and “E-discovery” is the term given to discovery of electronic documents and electronically stored information (ESI). How capable is your school district in its management of ESI? This can be a critical issue if the district becomes involved in a lawsuit.

E-discovery can include many forms of electronic records and data such as emails, server/network data and individual computer records. A district may be required to disclose “metadata,” such as when a document was created, when it was modified, who created it, who modified it, and when it was last accessed. Other forms of metadata include: prior edits, linked files and formulas within documents (in a spreadsheet, for example).

Demands for disclosure of information in electronic formats have become routine in litigation. Notably, courts have sanctioned parties and/or allowed a jury to draw an adverse inference solely from the failure of a party to identify, preserve, and produce relevant records in digital form.

This article will explain the basics of electronic records requirements relevant to school districts in New York State.

Key laws involving electronic records

Laws involving electronic recordkeeping include:

• The New York State Freedom of Information Law (FOIL), which provides for rights of access to records that are in an electronic format.
• The federal Family Educational Rights and Privacy Act (FERPA), which protects confidential information and provides for disclosure under certain circumstances, including parents’ rights of inspection and review.
• The federal Individuals with Disabilities Education Act (IDEA), which includes provisions on confidentiality and disclosure as well as rights of inspection and review.

Also relevant is Article 57-A of the New York State Arts and Cultural Affairs Law, which governs retention and disposal of school district records, including electronic records. Among other things, Article 57-A authorizes school districts to adopt a records management program by which a district may dispose of records which are not required to be retained under the law and accompanying regulations.

Role of the school board in records management, retention and disposition

Part 185 of the regulations of the commissioner of education sets forth the ED-1 Retention & Disposition Schedule, which details which records a district must retain and for how long. Districts may only begin disposing of records in accordance with the ED-1 schedule after the board of education has formally adopted the schedule by resolution. Boards must also designate a Records Management Officer to oversee the disposition of records pursuant to Article 57-A of the Arts and Cultural Affairs Law.

In addition to records maintained in hard copy format, the ED-1 schedule also addresses electronic records. Records may exist solely in electronic format or may exist in duplicate in electronic format.

All of the above can become of critical importance in the event of litigation. Issues can involve whether the district produced a record it possesses in response to a lawful request, whether a record that should have been kept was in fact kept and whether the district followed its own policy and adhered to state requirements, among other things.

Equally important, a school district’s records management system(s) need to be usable and uniform. If called upon, a school district needs to be able to state with certainty whether the records sought do or do not exist. And if they do exist, the district needs to be able to retrieve them. That can include many forms of electronic records and data such as emails, server/ network data, spreadsheets, and individual computer records.

You got served—now what?

Legal papers are properly served upon a school officer, such as the district clerk. A copy of any legal papers that are served should be forwarded to your school attorney and, where appropriate, your district’s insurance carrier. Your attorney should advise you to begin to identify, preserve, and collect all relevant information/evidence until the matter is resolved, including electronic documents, records, and data related to the claims.

Depending on the type of litigation, your attorney will likely advise your school board to put a “litigation hold” on any plans to dispose of relevant records. This is to ensure that relevant physical and electronic evidence is preserved and not destroyed or otherwise compromised. This is because a party has an obligation to preserve documents and evidence relating to a potential claim or litigation once the party has notice of the potential claim or litigation (i.e., once litigation is reasonably anticipated). Failure to do so can give rise to sanctions for "spoliation" of evidence, which is the intentional destruction, mutilation, alteration, or concealment of evidence.

Pursuant to recently enacted amendments to the Federal Rules of Civil Procedure and existing case law from federal and state courts in New York, the sanctions for failing to preserve ESI where the party acts with intent to deprive another party of the information’s use in the litigation include: a presumption by the court that the lost information was unfavorable to the party; instructions to the jury to presume the lost information was unfavorable (referred to as an adverse jury instruction); or dismissal of the action or entering a default judgment.

While a party is not obligated to keep every document in its possession once it anticipates being a party to a lawsuit, it is under a duty to preserve what it knows (or reasonably should know) is (1) relevant in the action, (2) reasonably calculated to lead to the discovery of admissible evidence, or (3) likely to be requested during discovery (or is the subject of a pending discovery request).

Your attorney can assist you in identifying which documents and data should be preserved. On the school district’s end, implementing a litigation hold means notifying all pertinent employees of the litigation hold, as well as taking reasonable steps to identify and search all sources of discoverable information and to preserve the same. If in doubt as to whether a document should be preserved, ask your school attorney.

What to expect when in discovery

In federal actions, Federal Rules of Civil Procedure 26 and 34 govern disclosure and discovery of documents. These rules outline an obligation to produce any non-privileged material (excluding material prepared for litigation) that is relevant to any party’s claim or defense. Rule 34 allows a party to request the production of documents and ESI and to specify the form in which the information is to be produced (e.g., in native format, in PDF, with or without metadata, etc.).

Section 3101 of the New York State Civil Practice Law & Rules (CPLR) governs disclosure and discovery of documents in state actions. Although it is silent on the topic of e-discovery, it has been interpreted to be virtually parallel to the federal provisions set forth in Rule 34. The Uniform Rules for the New York State Trial Courts also permit courts to establish the method and scope of electronic discovery, where appropriate.

While discovery is handled in large part through counsel, school boards and superintendents can expect discovery to involve some or all of the following:

• Discussions with the school district’s attorney about the nature of the litigation and the allegations.
• Discussions with the school district’s attorney and individuals who may have relevant documents and information or who know how to access relevant documents and information.
• Discussions with your IT department and/or an outside vendor regarding the preservation of ESI.
• Retrieving relevant documents, information, and data.
• Obtaining consent or providing notice to individuals if necessary, for example, under FERPA.

Although not the subject of this article, discovery may also involve testimony from individuals who may have information relevant to the case.

What if the school district is not a party?

One might think that not being named as a party in litigation would free a school district from any involvement in a lawsuit or discovery obligations, but this is not always the case. School districts and individual school employees often find themselves pulled into litigation between other parties, such as in family court matters, custody matters, contractor-subcontractor disputes, negligence/personal injury cases, and civil rights complaints. This can also involve demands for school district records.

In the best case scenario, a preservation or hold notice/request will be issued by the attorney representing a party to the litigation advising the district on what records need to be retained. The ramifications of failing to do so (i.e., fines or penalties for destroying or failing to preserve evidence) remain unclear in New York with respect to non-parties; courts are still grappling with this issue. Absent a duty by contract or special relationship, courts in New York have been hesitant to impose liability against non-parties for spoliation of evidence. Where an employer-employee relationship exists, however, a duty to preserve may give rise to liability.

How can a school district prepare for e-discovery?

A school district should be prepared to identify, preserve, and produce any relevant records – including electronic records – in their native format. This would include, for example, raw computer data, emails, electronic documents and databases, and associated metadata. Your attorney will be depending on you and your district’s IT department to provide the information necessary to comply with any e-discovery obligations arising out of a lawsuit, including:

• Identifying potentially relevant types of categories of ESI.
• Identifying potentially relevant sources of ESI and whether the ESI is reasonably accessible.
• Disclosing the way in which ESI is maintained.
• Implementing a preservation plan for potentially relevant ESI.
• Identifying the person(s) responsible for preserving ESI.
• Establishing a method by which ESI will be searched and reviewed.

It is imperative that school districts have in place comprehensive electronic records management policies addressing what types of records exist in the district, where/how they are maintained, how they are disposed of, and who is responsible for the associated records management activities. Protocols for creating, retaining, maintaining, and disposing of electronic documents should be uniform, well-defined, and communicated to employees who create the records.

E-discovery remains an area of law that is continuing to evolve. Working closely with counsel to prepare for and comply with e-discovery requests is advisable.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Ashley C. Pope of Pope Guercio & Guercio, LLP.