Written by Doug Austin, Editor of eDiscovery Today
When people write about organizations that have a need for 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 written about often, but there are a huge number of those agencies across the country, and they have eDiscovery needs just as much as any other organization. Here’s a look at 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 for state and local government agencies are the rules that govern discovery for them. Most cases involving those agencies are conducted and tried in state courts, meaning they are subject to state rules for discovery instead of Federal rules. This means that the rules are a little different in each state, though most states’ eDiscovery rules for civil procedure are patterned after the Federal Rules of Civil Procedure.
However, some state eDiscovery rules even predate the 2006 amendments to the Federal rules for eDiscovery. For example, my state (Texas) enacted Tex. R. Civ. P. 196.4 in 1999 to address 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 civil procedure rules and two rules of evidence that address eDiscovery considerations. Here are all of them:
Texas Rules of Civil Procedure
- Tex. R. Civ. P. 192.4: Limitations on Scope of Discovery
- Tex. R. Civ. P. 196.3: Production
- Tex. R. Civ. P. 196.4: Electronic or Magnetic Data
- Tex. R. Civ. P. 196.6: Expenses of Production
- Tex. R. Civ. P. 215.2: Failure to Comply with Order or with Discovery Request
Texas Rules of Evidence
- Texas Rule of Evidence Rule 503: Lawyer-Client Privilege
- Texas Rule of Evidence Rule 901: Authenticating or Identifying Evidence
As 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 not only has the rules, it also has thousands of eDiscovery case law rulings (it’s 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 has a PDF of state rules here, last updated back 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 Proposal (RFP) process. Government agencies of any kind are generally expected to be highly transparent about their purchasing process, so these RFPs are often publicly available.
An RFP for state or local eDiscovery services and/or software typically includes several sections, such as: 1) the schedule for the process (including date for issuing the RFP, pre-proposal conference, receiving bids and awarding the contract), 2) scope of work/technical specifications, 3) description of the evaluation and selection process, 4) requirements for submitting and formatting proposals and 5) general instructions to bidders.
A terrific example of what an eDiscovery RFP looks like for a local government agency is the one that my hometown – the City of Houston – issued last year.
Types of Cases and Projects
The types of litigation cases involving state and local government agencies vary greatly, just as they can for any government agency. They can include claims for challenging laws and ordinances, various torts, copyright infringement cases, harassment, and construction law cases. You’ll also see more criminal cases here and those 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 that most other organizations have, so they have a need for solutions to support information archiving, compliance and investigations activities. Investigations are more common for all types of government entities, including state and local government agencies. This IPRO post discusses how legal technology can help government agencies address information archiving, compliance and investigations needs.
The great equalizer today for state and local government agencies is the cloud, which has put these agencies on equal footing with their Federal counterparts. Unlike the requirement of Federal government agencies for providers to be FedRAMP authorized, providing data services in a secure cloud environment, state and local governments have no such requirement. The City of Houston RFP referenced above illustrates what state and local agencies are looking for today with this statement: “The City strongly prefers a cloud based (i.e. hosted) deployment”!
State and local government agencies have many of the same needs for eDiscovery and Information Governance as Federal agencies or other organizations. And many of them are conducting those disciplines in the cloud today. Don’t forget about them!
For more educational topics from me related to eDiscovery, cybersecurity and data privacy, feel free to follow my blog, eDiscovery Today!
Find out more about the various solutions for government agencies that IPRO provides.