How Will Electronic Discovery Affect Your Operations and Budget?
Pallotta, Howard, Policy & Practice
Governmental social service agencies use computers in virtually every kind of situation imaginable. Computers are used in everyday tasks to communicate, schedule meetings, document calls to clients, assess medical care to members, pay claims, automate changes to provider directories and document visits to foster homes.
Automation provided by the e-world clearly makes us more efficient but electronic discovery during litigation cannot only affect your budget but cripple your organization without proper planning and evaluation of the documents your agency possesses.
The aim of this article is to list the duties imposed upon governmental entities related to electronic discovery and how to avoid the pitfalls in the very world that makes us more efficient.
In federal court and in some state courts shortly after a lawsuit commences, your agency will be required to produce the names and addresses of every person who possess information about claims or defenses in the suit. Your agency will also be required to produce all documents by category, including all electronic recordation that relates to a claim or defense in the case. This duty must be met even though your agency may not have had time to investigate the matter at issue.
This production will, many times, accompany a request for system, substantive and embedded metadata. System metadata are date, time and author of a document or when it is modified. Your computer automatically saves this data whether you know it or not. Substantive metadata shows text changes to your documents or files. Embedded metadata are data that are entered on data sheets not viewable by others. This might include a formula used in an Excel spreadsheet used by the finance department or hyperlinks or hidden columns on a document.
The same reasons electronic documents make our world easier and more productive make these requests more problematic for the agency. Because electronic documents are easy to create and modify, we make more of them. Because electronic mail makes it so easy to communicate, we can have running tallies of disputes recorded at every step. Because electronic recordation requires so little space (think of a thumb drive), data are dispersed at the office, on a laptop, at home or even carried with you.
The problem with copious amounts of data is that today there is more information to search when agencies are sued. Think about a claim involving a Medicaid agency's payment to a subset of providers for five years. Leaving aside the actual data of payment of 10,000 or 20,000 providers for 60 months, the data involving decisions in the state plan document, state regulations or a rate proceeding for five years could be enormous. …