Take Away: School districts are frequently subject to litigation, but are often unaware of their responsibilities in discovery, especially as related to electronically stored information. Student Privacy Acts do not take away the need for discovery response. Data maps are crucial, as is a pre-need plan for informing data custodians and responding to litigation hold letters.
School district officials well know that litigation frequently arises, both from within schools and from those on the outside. Employment litigation initiated by terminated staff members is all too frequent, and suits by parents whose children are allegedly injured or who have allegedly been deprived of their rights are common as well.
E-discovery clashes are entering this arena. The bulk of these discovery problems have occurred (to date) at administrative hearings; which, although such hearings are generally not conducted under the rules of evidence or procedure, hearing officers look to those evidence and procedure rules for guidance. At least in several of the cases in the author’s practice, hearing officers have looked to and applied case law from e-discovery cases in deciding evidentiary disputes.
Discovery is the process by which each side in a lawsuit can ask for documents, data and information from the other side. E-discovery, of course, refers to the same process when electronically stored information is involved. Before a school district receives an actual request for data or information, it may well receive what is called a “litigation hold letter”. This letter from opposing counsel creates a duty on the part of the school district to “hold” relevant information in case it is wanted in future discovery.
For those who are involved in responding to a litigation request for discovery or in implementing a “hold” on information due to a litigation hold letter, school districts pose nightmarish problems of decentralization of data. Teachers are often in possession of large amounts of data regarding their particular students, and that data sometimes never is centralized or archived. Additionally, teachers often work at home and correspond with parents from home, often (unthinkingly) using their private email accounts instead of the district-assigned email. This practice causes entire “conversations” to be lost if only the district email is searched. (This becomes a problem as well if a Public Records Act request is made of a school district).
Further decentralization occurs because data is stored at the individual building level, and not ever centralized in a district office. Finally, some data (in some states) is entered into and held solely in a statewide education data archive that is not in the control of the school district. It can also happen that a school district contracts for the archiving and/or processing of data with a third party, including contracting for email services.
For all of these reasons, the first thing that should be a project for school districts and their attorneys is a comprehensive “data map”, showing what data is held, where it is held, and who the custodian of the data is. Additional information such as format, retention schedules, and irregularities in the history of archiving should be on the map as well. This will allow legal counsel and school administration to effectively respond and hold ALL relevant data in a timely manner.
Another issue school districts should address with their attorneys relates to the district’s duty to hold information when litigation might “reasonably be anticipated”. With such a standard, enough events occur during any school week to potentially justify a “hold” on all data all the time! Deciding how to triage events, fostering a constant involvement of counsel in such decisions, and having a sound policy that is reasonable is a good part of developing a defensible position for districts on when to hold information of their own accord.
Many Boards of Education and Superintendents may be under the mistaken impression that FERPA (the Family Educational Rights and Privacy Act) and various state “student privacy” Acts prevent litigation opponents from discovering information. This may, in part, come from a mistaken comparison to state Public Records Acts, many of which have specific exceptions for student information. However, even public records law has made distinction between information about students and information that tangentially involves students and is redactable. See, for example, Baker v. Mitchell-Waters, 160 Ohio App. 3d 250 (Ohio Ct. App., Montgomery County 2005) (holding that student records relating to abuse by teachers were discoverable despite FERPA and Ohio’s Student Privacy Act)
In summary, the handling and maintenance of e-discovery information are valuable and necessary, although often overlooked topics that should be discussed by all of those who are responsible for district data and information . Often, discussions about e-discovery among school administrators and their counsel can lead to productive plans and policies about electronically stored information generally; including, in these days of federal stimulus dollars, how to comply with new and extensive grant regulations involving school-held ESI.