Lessons Learned from eDiscovery Applied to Public Records Disclosures

This year marks the 50^th anniversary of the signing of the Freedom of Information Act (FOIA), which over the years has been followed by a variety of other federal, state, and local “open records” laws. In the interest of democracy, we expect our government to be open and transparent. Yet that transparency comes at an ever increasing cost as the volumes of information stored and communicated by government agencies grows. Email and other technologies have made meeting public records requests a greater challenge. However, as technology adds to the challenges of meeting public records requests, it also can be looked to for solutions.

I started my career in litigation technology over twenty years ago, working with the Department of Justice. At the time the federal government was at the forefront in the use of technology to manage the vast amounts of information involved in government cases of the day. Over the years that technology has filtered out into the private sector, as law firms began to deal with larger and more complex discovery requirements. Using technology to automate data collection, processing, review, and production allows them to meet tight deadlines while keeping costs down.

In many ways the eDiscovery process resembles the public records disclosure process. Potentially relevant sources of responsive information need to be identified, preserved, and collected. Processing of the data is necessary to organize it and make it searchable. Review and analysis of documents takes place, where responsive documents are identified and exempt information is redacted. And, finally, the responsive documents are disclosed. With public records requests, government agencies face many of the same challenges that law firms confront in meeting eDiscovery requirements: large volumes of data, variety of data sources, complex data types, short turnaround, and increasing costs.

Just as the legal industry has developed automated workflows for managing eDiscovery in litigation, government agencies have established their own methods for managing public records requests. Based upon my history working with both groups, I feel that I can make a handful of recommendations.

• Organization is Key – At both the macro and micro levels project management is critical, and planning is imperative.
• Build Your Technology Toolkit – While you may have the workhorses you use for processing and review, there are a wide range of useful tools you can find to help address unique requirements or circumstances.
• Establish Workflows for Various Data Types – Data can take many forms: paper, document images, and native files, including video, audio, and other structured data. Different workflows may need to be established and different tools may need to be used to address different data types.
• Use Culling to Reduce Large Data Volumes – Options such as deduplication, deNISTing, date range filtering, and keyword searching are now common parts of data processing.
• Explore Analytics and Search Technology – From the most simple full-text search to analyzing the data for concepts and connections, technology today can provide us with powerful ways to streamline the review process.

There’s an old adage in computer science that goes, “Garbage in, garbage out.” That is to say, incorrect or poor quality input will result in incorrect or poor quality output. In both eDiscovery and public records disclosures, we’re working with data that is going through a process. Inconsistencies and errors made along the way can cause problems down the road, meaning missed deadlines and increased costs. Organization, planning, and having the right technology at your disposal are key elements in both universes.