17th Annual ARMA Metro Maryland Spring Seminar Confidentiality, Access, and Use of Electronic Records

Presenters Ron Hedges Former United States Magistrate Judge, District of New Jersey Ken Withers Deputy Executive Director, The Sedona Conference 17th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤2

Outline What is a “record” in today’s digital world, and how do we treat it? What makes “digital” different? Retention Preservation Public Access Privacy Special considerations for court records New Federal Rules regarding ESI preservation 17th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤3

4 [Video of Oklahoma City Reserve Deputy Sheriff incident redacted for bandwidth considerations]

17th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤5 [Video of New Richmond, Ohio police officer incident redacted for bandwidth considerations]

Questions Are these “records” or something else? Are they subject to public records laws? What are the consequences of treating these as “records?” Retention Access Integrity Privacy Infrastructure Are they subject to civil discovery? 17th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤ 6

Comparing FOIA to the Privacy Act 717th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUDICIAL WATCH, INC. ) ) Plaintiff, ) ) v. ) ) Civil Action No (RCL) ) DEPARTMENT OF STATE, ) ) Defendant. ) PLAINTIFF’S MOTION FOR A STATUS CONFERENCE AND TO SHORTEN DEFENDANT’S TIME TO FILE ANY RESPONSE OR OPPOSITION WITHIN FOUR BUSINESS DAYS Plaintiff Judicial Watch, Inc., by counsel, respectfully requests a status conference in this matter as soon as possible to avoid further undue delays, prejudice and potential spoliation th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤8

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17th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤11 Is it time for a comprehensive solution to the government problem? What would be the elements?

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Pleadings, Court Orders, Substantive Motions & Dockets In civil proceedings, the public has a qualified right of access to documents filed with a court that are relevant to adjudicating the merits of a controversy. In compelling circumstances, a court may exercise its discretion to deny public access to submitted documents to protect the privacy, confidentiality or other rights of the litigants. 17th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤13

Discovery There is no presumed right of the public to participate in the discovery process or to have access to the fruits of discovery that are not submitted to the court. Absent an agreement between the parties or a court order based on a showing of good cause, a litigant is not precluded from disclosing the fruits of discovery to non-parties. A protective order entered under Fed. R. Civ. P 26(c) to facilitate the exchange of discovery materials does not substitute for the individualized judicial determination necessary for sealing such material, if filed with the court on a non-discovery matter. 17th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤14

Proceedings in Open Court The public has a qualified right of access to trials that can only be overcome in compelling circumstances. The public has a qualified right of access to the jury selection process. 17th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤15

Settlements There is no presumption in favor of public access to unfiled settlements, but the parties’ ability to seal settlement information filed with the court may be restricted, due to the presumptively public nature of court filings in civil litigation. Settlements filed with the court should not be sealed unless the court makes a particularized finding that sufficient cause exists to overcome the presumption of public access to judicial records. Absent exceptional circumstances, settlements with public entities should not be confidential. 17th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤16

Public Access: Four Basic Policy Approaches 1.Open electronic access, with minimal limits. 2.Generally open electronic access, coupled with more significant limits on remote electronic public access. 3.Electronic access only to documents produced by the courts. 4.Systematic reevaluation of the content of the public case file, combined with limited access to electronic files. 17th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤17

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2015 Amendments to the Federal Rules of Civil Procedure Rule 26(b)(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. 17th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤21

2015 Amendments to the Federal Rules of Civil Procedure Rule 37(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. 17th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤22

Committee Note to Rule 37(e) “....The rule applies only if the information was lost because the party failed to take reasonable steps to preserve the information. Due to the ever-increasing volume of electronically stored information and the multitude of devices that generate such information, perfection in preserving all relevant electronically stored information is often impossible. As under the current rule, the routine, good-faith operation of an electronic information system would be a relevant factor for the court to consider in evaluating whether a party failed to take reasonable steps to preserve lost information, although the prospect of litigation may call for reasonable steps to preserve information by intervening in that routine operation....” 17th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤23

Committee Note to Rule 37(e) “....This rule recognizes that reasonable steps to preserve suffice; it does not call for perfection. The court should be sensitive to the party’s sophistication with regard to litigation in evaluating preservation efforts; some litigants, particularly individual litigants, may be less familiar with preservation obligations than others who have considerable experience in litigation....” 17th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤24

Committee Note to Rule 37(e) “....Another factor in evaluating the reasonableness of preservation efforts is proportionality. The court should be sensitive to party resources; aggressive preservation efforts can be extremely costly, and parties (including governmental parties) may have limited staff and resources to devote to those efforts. A party may act reasonably by choosing a less costly form of information preservation, if it is substantially as effective as more costly forms....” 17th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤25

17th Annual ARMA Metro Maryland Spring Seminar ¤ April 22, 2015 ¤26 Questions & Comments