eDiscovery requirements and archiving student email

Kevin Jarrett tweeted me the following question today:

If you happen to be reading this post at a school or in another location which currently blocks access to Flickr, here’s the text version:

Hey @wfryer looking for the 411 on eDiscovery: http://bit.ly/9hcxe9 (your wiki) Bottom line: do schools have to archive STUDENT email?

Before replying, I need to add a “standard disclaimer” statement which I always try to do regarding legal issues: I am not a lawyer, and the information below should not be construed as legal advice. If you need legal advice, consult a lawyer who is credentialed to practice law in your locality. The information presented here is my understanding and perception, based on my limited knowledge, understanding and experiences.

Disclaimer over.

My short answer is, “If the school district provides the email service for students in-house, then the same archival responsibility present for staff email is in effect for student email. If a third-party service / website provides student email (for instance, students are using Gmail, Yahoo mail or Hotmail accounts for their own email accounts that are not “official” school accounts) then the district is NOT required to archive those email messages.” The best open resource I’ve seen written to date on this topic is Scott Bauries‘ October 2008 post on the Edjurist blog, “The E-Discovery Amendments And Electronic Technologies In Schools (Email And Local Documents.)” In that post, Scott wrote:

These suggestions might cause some of you to ask what you should do if you customarily use Web 2.0 tools such as Twitter. As I pointed out in the other two posts in this series, only information within your custody or control (or the custody or control of the school district) is discoverable. It is my understanding that any actual archiving of Web 2.0 material typically occurs at a third-party vendor site, and it would be that third-party vendor’s responsibility to save it if it becomes relevant to litigation. If you do host your Web 2.0 content on your system, though, it is likely that you must save it if a litigation hold is issued. Also, if your Web 2.0 tools cause information to be placed into your Temporary Internet Files or some other temporary storage area on your hard drive, you should not actively delete the information because it is in your custody and control. Your school district’s attorneys may also want you to disable any automatic “clearing” of the temporary files until further notice.

It is that laws in the United States today may make it easy for school officials to take the following position: “We’re not going to provide any student email accounts, because we don’t want to deal with the archival responsibilities and other “general messiness” (as well as work for the IT staff) which that entails.”

There are many problems with this position, of course, and one of the most basic is how educators in the school district can help students master the ISTE NETS-S without email accounts?

My advice to schools on this topic is to adopt and implement Google Apps for Education (it’s free) and utilize one of several archiving solutions. There are lots of reasons why Google Apps for Education is a great idea. When it comes to email archival, the current Google Education Edition FAQ states on this topic:

Google Apps for Education gives schools the ability to filter, monitor or archive mail using our Google Message Security and Compliance Solutions.
You can learn more about these solutions here.

We offer a 66% discount for educational institutions and non-profit organizations.

Alternatively you could choose to implement your own filtering, monitoring or archiving solution using an email gateway. This gateway allows your school to route all mail into and out of our system through your network. This gives you the ability to filter, monitor, and archive in any way you see fit.

We have developed a guide on how to implement a Mail Gateway, for more details, see this page.

We have a number of partners who can offer this service if you do not want to implement it yourself. You can navigate here learn more about the partners.

That’s my 2¢ on eDiscovery requirements and archiving student email. Remember, however, I’m not a lawyer!

Edlaw folks, what say you to Kevin’s question?!

I’ll add the answers and links here to the list of resources on the e-Discovery page of the Unmasking the Digital Truth project wiki.

Remember the DURATION of time schools are required to archive email may vary by state, and archival requirements for specific emails can change when a “litigation hold notice” is received. See the previously reference post by Scott Bauries, as well as his December 2008 post, “Discovery Rules And State Education Laws,” for more details about these issues.

On this topic and other related legal issues in schools, you might also check out my post from METC 2007, “Technology in the Schools: Policy, Privacy and Practical Issues for Teachers, IT and Others.”

Full Disclosure: Per my blog disclosure policy, I’m a Google Certified Teacher, I’ve drank the Google kool-aid, and I think it tastes wonderful. 🙂 I receive no financial rewards if your school district or you personally choose to use Google products. At this point, I don’t even own any Google stock! I certainly should, but don’t yet…

Technorati Tags:
education, email, gmail, law, legal, school, student, technology, ediscovery, archive, rules, googleapps, postini

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