In class exercise

• You have been appointed Records Officer for a large cabinet Department in the Obama Administration.

• A lawsuit against the Department has been pending for a few months which would affect several agencies and bureaus in the Department (but not all of them).

• Tomorrow, when you walk in to work, you will find out that Magistrate Judge Grimmiola issued a preservation order late yesterday requiring that all documents, records, and evidence in any form be preserved relevant to the lawsuit.

• A senior lawyer in the General Counsel’s office called you just now to ask what your plan of action is for dealing with this litigation crisis. What do you tell him?

Overview of the PROFS Case:Armstrong v Executive Office of the President

LBSC 708X/INFM 718XSeminar on E-Discovery

Jason R. BaronAdjunct Professor

University of MarylandJanuary 26, 2009

The Original Email Case…Armstrong v. EOP, 1 F.3d 1274 (DC Cir 1993)

THE THREE ARMSTRONG INJUNCTIONS

• The initial temporary restraining order covered Reagan Admin. PROFS tapes (1989)

• The second temporary restraining order covered Reagan and Bush era PROFS and All-in-1 tapes (1992)

• The district court’s permanent injunction covered all “electronic commuincations systems” and their backups (1993)

THE ARMSTRONG ORDER January 6, 1993

“ * * * ORDERED that Defendants are enjoined from removing, deleting, or altering information on their electronic communications systems until such time as the Archivist takes action pursuant to . . . the Federal Records Act to prevent the destruction of federal records, including those records saved on backup tapes.”

Armstrong Backup TapesRetained at NARA

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12000

14000

16000

1st TRO 2d TRO Jan 93 Inj.

Backup Media Transferred to the Custody of NARA,

Including Reagan, Bush I, and Clinton Backups

0

10000

20000

30000

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60000

1st TRO 2d TRO 1993 Inj. 2001 transfer

TYPES OF BACKUP MEDIACAPTURED IN THE ARMSTRONG

LITIGATION• Open reel

• 4 mm

• 8 mm

• DLT

• 3480 cartridges

• Pinnacle drives

• Hard drives

ISSUES ADDRESSED IN ARMSTRONG

• E-mail messages can be federal records

• Agencies must manage the unique “electronic” e-mail record, as it is only a “kissing cousin” of a hard-copy printout

• Agencies must provide for some form of periodic monitoring by records managers to ensure correct application of guidance

To: List AFrom: ONDate: April 11, 1987Re: Email: paper vs. electronic copies

Unless the software defaults to adifferent configuration, neither the name of the sender nor the names of thethe recipients are provided in anintelligible form. Is this all that thestorm and furor have been about? Whatother data & metadata existing on the“live” electronic version must be captured? cc: John Smith, Jane Doe, Gary ….

ISSUES ADDRESSED IN ARMSTRONG (cont’d)

“Who Knew What When”

• Transmission and receipt data must be managed along with content– Names of senders, recipients– Distribution Lists– User Directories– Receipt data, including acknowledgements

of receipt, where requested

How the EOP ImplementedArmstrong

• Issued recordkeeping guidance covering applications on existing e-mail systems

• Customized existing proprietary software to perform electronic recordkeeping functions– Introduced front-end ‘prompts’– Built in automatic monitoring functions

• Restored and reconstructed e-mail residing on backup tapes

Annual Sampling Obligations

• 36 CFR 1234.30(g)(3)– Annual statistical sampling of reels of

magentic tape to identify any loss of data and causes of loss

– 50 tapes or 20% sample if tape library > 1800,

whichever is greater

-- Tapes with 10 or more read errors to be replaced and lost data restored

10 Year Sampling Obligations

• 36 C.F.R. 1234.30(g)(4)

“Agencies shall copy permanent or unscheduled data on magnetic tapes before the tapes are 10 years old onto tested and verified new tapes.”

• Legacy burden on NARA: x • N where N = original number of tapes

Federal Records Act• Definition of record (44 U.S.C. 3301) includes:

. . . all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency . . . as evidence of the organization, functions, policies, decisions, procedures, operations or other activities of the Government or because of the informational value of data in them.

(Italics added.)

• All federal agency records – in both paper and electronic form – are required to be “scheduled,” with the Archivist signing off on their disposition as permanent or temporary (44 U.S.C. 3303a & 3303a(a))

Traditional Model for Federal Records Accesioned to NARA

• 2% Permanent

• 98% Temporary

Hypothetical Agency E-Record Universe

• 100% of desktop e-records considered permanent as default option

Email records at Presidential Libraries

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PaperE-Mail

Hot topic: Metadata

• What is it? – Email header information (possibly hidden)– Proprietary features of word processing (e.g.

summary fields)– Embedded & shadow data– Deleted keystrokes– Tracking info– Spreadsheet formulas

• Format issues and metadata• Metadata ethics: inadvertent production