A recent study by Deloitte found that 75 percent of litigation professionals at government agencies are “not confident” their agency could demonstrate their eDiscovery data is “accurate, accessible, complete and trustworthy,” if challenged.
This refreshingly candid – but disconcerting – revelation illustrates the serious challenges that government agencies face when it comes to the collection, processing, management and retrieval of electronically stored information (ESI). It’s not surprising that these same professionals encounter a wide range of pitfalls when it comes to document productions as well.
The challenge of document production for government agencies was the focus of the November virtual meeting of the LexisNexis Federal eDiscovery Think Tank. This invitation-only working group of legal executives at federal agencies convenes on a periodic basis to discuss common challenges, opportunities and best practices.
Participants identified the four biggest challenges they face with respect to document production in eDiscovery:
- Encrypted documents. Some agencies are running into document encryptions they can’t crack easily because the government networks don’t allow them to host certain decryption software applications on their servers. This forces them to go back to the parties in the litigation to decipher the content in the documents.
- Massive data files. One participant noted the emergence of two specific types of huge data files that are posing growing problems with production: (1) PDFs that are “thrown over the wall” for production, containing multiple individual documents that need to be unpacked; and (2) Huge video files that run on various proprietary software platforms, forcing the eDiscovery team to figure out which application can be used to uncode, view and produce the video.
- Budget constraints. This is especially vexing for federal government agencies, which are routinely under budget stress, sometimes even to the extent that they await word on a continuing budget resolution to know whether they can keep the doors open the next day. This sort of uncertainty creates constraints on resources that are needed to properly support large-scale document productions.
- Systems limitations. Government agencies at all levels report that a major hurdle with regard to producing ESI is their own internal systems and processes. One of the working group members observed this challenge is likely to increase now that the new Federal Rules of Civil Procedure have gone into effect, forcing government agencies to comply with the specific production formats that are agreed upon by attorneys during pre-trial conferences.
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