Government E-Discovery: Improving But Still Problematic

The recent economic recession, which began to impact the late 2008 and early 2009, created more than enough economic shortfalls to go around. From local, all the way up to  Federal government, budgets were severely impacted due to lessened tax revenue. Even if stimulus money was spent on government agencies, it was largely spent on preserving basic services, maintaining jobs, and generally keeping governments operational. Necessary internal infrastructure projects, often at the Federal agency level, were put off for another day. That said, Americans and the Federal government did not suddenly switch back to using typewriters in 2009. Rather, and perhaps surprisingly, the use of new and expensive technology in workplace settings has continued to increase over the past decade.

A recent survey of Federal agencies indicates that these agencies have not completely kept pace with technological advancement and are struggling to appropriately respond to discovery requests for electronically stored information (ESI). While most Federal agency respondents believe that their staffs are more confident in handling e-discovery requests, most also agree that the quality of the ESI responses may lack legally-sufficient accuracy, accessibility, completeness, and trustworthiness. The problems with Federal agency e-discovery responses may intensify, or may improve, but one thing is clear: the number of e-discovery requests and subsequent ESI responses is growing.

It’s not hard to see why e-discovery requests from Federal agencies are growing. High-profile Federal legislation like the Affordable Care Act (ACA) features ESI regulation enforced through Federal agencies. Indeed, the ACA mandates the use, optimization, and platform-integration of electronic medical records (EMRs) – a form of ESI. Today, EMRs are critical in billing, reimbursement, and even fraud-related legal matters. As another example, almost all securities transactions and related filings are done online. In fact, most Federal agency filings, exemption requests, agency communications, or rule-making comments are accomplished through online submission and are then ESI.

Besides regulations related to ESI, the use of mobile technology has risen among Federal agency employees. Many more employees are now using tablets, smart phones, and cloud-based computing. Ideally, the ESI on all of these devices is synced and part of one, accessible network. But as the recent controversy involving then-Secretary of State Hillary Clinton’s use of a personal email account and private email server demonstrates, it is sometimes even difficult for heads of Federal agencies to understand the complications of scattering ESI over multiple systems and servers. Programmers are building more sophisticated programs and Engineers are putting computing power in our hands and in just about every location imaginable. Therefore, Federal agency e-discovery teams are struggling to hit a target that continually moves forward.

As one e-discovery expert stated “the rules of litigation haven’t changed, the technology has. We just have to amend our practices to include it.” Financial and budget constraints have a real impact. It takes time, technology, and money to update e-discovery software, hardware, and processes. But as technology grows, agency resources are not growing at the same pace. The reality of technological advances, budget restraints, and Federal agency efforts may prove little comfort to a litigant relying on ESI from the Federal government. Cases are built on evidence, and the lack of legally sufficient evidence – or the false assumption that you have all of the available evidence – can ruin your case.

The e-discovery experts at WarRoom Document Solutions Document Solutions can help you store, protect, send, and analyze ESI. When you hire us to handle ESI, from a Federal agency or elsewhere, you can feel confident that you are getting expert-level service and advice regarding the e-discovery process and the quality of ESI received. Federal agencies are in a unique legal position in that they are protected through many immunity laws. Do not rely on ESI obtained from a Federal agency without at least having it reviewed by the experts at WarRoom Document Solutions. Better yet, save time and money when you let our e-discovery specialists work with you to obtain and analyze critical ESI from Federal agencies.

WarRoom Document Solutions is the nation’s leading e-discovery solution. With two strategically-positioned office locations, we serve clients in the Northeast and throughout the U.S. With more than 21 years of experience, WarRoom Document Solutions provides document solutions you can count on. Contact us at 1-855-WAROOM (927-7666), or contact us online for more information on how we can help your business or law firm.

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