State, local governments struggle to keep up with e-discovery requirements

One challenge is that it is really kind of the "Wild Wild West" out there in terms of the vendor landscape. A few years ago, there were only a few predictive coding offerings on the market. Now there are probably more than 30 different offerings. Sometimes they are called predictive coding when they are actually something more closely related to concept searching. So there is mass confusion in the market. All these technologies aren't the same.

Stephen Marsh is president and CEO of Smarsh, a software company that helps public entities meet the electronic message retention and e-discovery needs required for compliance with the Freedom of Information Act and state open records laws. The Texas Department of Information Resources (DIR) selected its solution as an approved software vendor to meet the electronic message retention and e-discovery needs of state agencies.

Q  KMWorld: What are some of the biggest challenges you have seen public sector organizations face in complying with e-discovery requirements?

A  Marsh: For both public and private sector organizations, getting their hands around all the types of content in use is a real challenge. Initially they dealt with a limited number of types of records for legal holds: e-mail and physical documents that were digitized. But we have seen a proliferation of content types. First it was e-mail, then instant messaging and physical documents. Now employees are bringing in their own devices and there are new social tools, such as Facebook, Twitter and LinkedIn. A lot of public sector organizations struggle to address all that as one big project. It is an overwhelming task. Some try to handle it by keeping all those records in house. Others who don't have the resources get like a deer in the headlights. They don't know what to do.

But assuming they can capture it all in a central repository, most e-discovery solutions with enterprise search features will probably address their needs. The real problem is addressing the content types. They may have e-mail nailed. But ask about Facebook, and they say, "We don't know how many accounts are in use." Twitter? "We have no way to capture that content. If someone asked us for it, we could never produce it."

Q  KMWorld: Are regulators and courts that make decisions about records retention and production also struggling to keep up with technological change?

A  Marsh: I can't speak specifically about the public sector, but I know that the regulators who deal with industries such as financial services are absolutely struggling to keep up. They have been basing requirements on old-fashioned rules written to address paper documents in boxes, but now they are dealing with Facebook, LinkedIn and text messages sent over mobile devices. They have to try to adapt those regulations to apply to tools in use today. They are taking a pre-emptive approach and trying to address new communication tools that could emerge in the way they draft regulations. The things you could do with Facebook three years ago were much more limited than what you can do with it now. So we are starting to see more regulations that are less prescriptive and more conceptual.

Q  KMWorld: One limitation you hear about in the public sector is that they don't have the budget to spend on a technology solution to address e-discovery and records retention. What do you say to those people?

A  Marsh: We were talking to officials at a city in Florida who said they didn't have the budget for a technology solution. Meanwhile, they have the obligation to produce these records, not only for e-discovery if there is litigation, but also for records requests from the public. They have sunshine or transparency laws that require them to share records with the public. So they probably have people in the agency today spending hours searching e-mail boxes or servers without the right technology, and they are wasting a lot of time. They probably could spend less money in the grand scheme of things if they had the budget for the technology. But that still doesn't change the fact that they don't have those dollars in their budget. They have the head count, but they may not be able to make the investment in the tools they need to save them some money.

Q  KMWorld: Is one challenge of e-discovery that it involves not just one department, but a project that spans IT, legal and other departments?

A  Marsh: Yes, we have seen several different departments take the lead in the process. In some cases, it is a records manager or it might be the IT department. We have even had marketing or public relations groups responsible for social media leading the charge because they want to use social media to engage with their communities or constituents.

Q  KMWorld: Do you think state and local governments still have a lot of work to do to make compliance and record retention more efficient?

A  Marsh: I would say most public sector organizations have not yet adequately addressed their records retention and e-discovery needs. They are missing content types to search and produce. A lot of agencies have addressed e-mail archiving, but with new content types they have no central archive or any ability to search through them.