My September 13, 2008, post “Explaining the value of microblogging and Twitter for educators” inspired Paul Barrette to comment and ask:
But in the US, how would you open up access to Twitter while still meeting the requirements of the Federal Rules of Civil Procedure passed in December of 2006 that require school districts (among other public institutions) to archive electronic communications? Archiving can easily be done with an internal system (we use FirstClass), but it’s not really feasible for systems outside of the district.
In my rather lengthy comment response to Paul’s question and the assumptions which underlie it, I responded in part:
The intent of the law [FRCP] was not to chill use of every website and software tool which permits collaboration and facilitates learning. The intent of the law was to provide documentation of network abuse and misuse. [PREVENT THE INTENTIONAL DESTRUCTION OF DOCUMENTS RELEVANT TO ONGOING LITIGATION.] Districts should and must according to the law make good faith efforts to archive electronic communications on the district’s email server, but it is unrealistic and counterproductive to attempt to archive every outbound packet of data which is created by students, teachers, and other district staff members in-district.
Of course I am NOT a lawyer, so my opinion should not be construed or interpreted as legal advice, but Scott Bauries IS a lawyer and has written an articulate post also responding to Paul’s question and perspective on the Edjurist blog titled, “The Recent E-Discovery Amendments to the Federal Rules of Civil Procedure and Communicative Technologies in School Districts (Intro).” Scott concludes his post by noting:
As I mentioned above, the e-discovery amendments for the first time introduced into the FRCP explicit provisions regulating the disclosure and production of electronically stored information. Since then, a misconception has developed among some public education practitioners that institutions using such information must therefore now archive all electronic information in case it is later needed in discovery, despite their prior practices and despite the lack of any anticipated litigation concerning the information in question. No such independent duty was created by any of the e-discovery amendments adopted in 2006, and no such duty exists anywhere else in the FRCP (although state education laws or administrative codes may require otherwise). As I will explain further in a future post, under the FRCP, an institution may be required to halt the routine destruction of electronically stored information once litigation has begun, but outside that limited circumstance, the e-discovery amendments do not require the archiving of any electronic information not previously stored.
As to the use of Web 2.0 technologies in education, then, it is unlikely that the e-discovery amendments will reach much of this information because, if it is stored at all, it is usually stored by a third party, such as a blog hosting site (and is therefore in that party’s possession and control, rather than the district’s). As to the use of other electronic communicative technologies, such as email, the amendments clearly apply, and the remaining posts in this series will address the specific changes that were made to the FRCP and how they impact the daily work of education practitioners and leaders who use these technologies.
Just as educator misconceptions have led to widespread, overly conservative interpretations of fair use provisions of U.S. intellectual property law (a situation being addressed by a forthcoming report due on November 11, 2008 from the Media Education Lab at Temple University under the leadership of Dr. Renee Hobbs) I think we have some cases of conservative misinterpretations of the FRCP by school district administrators and IT staff members when it comes to web 2.0 sites and technologies.
U.S. law does NOT require school districts to archive EVERY data packet traversing school networks. It IS legal (as far as FRCP mandates go) for school district leaders to permit the use of blogs, wikis, social networking sites, and web 2.0 conversation sites like Twitter and Plurk without setting up a system for archiving all these communications packets. There are different reasons school districts block websites, and one of the most common is to attempt to keep students “on task” when they are online. (i.e. not checking their Facebook profiles when they are “supposed” to be doing Internet research.) Just as there is no legal requirement for schools to block websites to “keep students on task,” neither is there a legal requirement that schools block all web 2.0 sites from teacher and student access on the school network when the data packets shared on those sites are not being electronically archived by the district.
Many thanks to Dr. Scott McLeod and Dr. Justin Bathon for forwarding this original post about Twitter and and FRCP to Scott Bauries for his insights and perspectives. If your school district is blocking web 2.0 sites and tools because of a professed belief that FRCP requires such sites to be blocked if all data exchanged there cannot be archived, I encourage you to forward this post from Scott to them and continue to follow his post series on Edjurist.
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You bring up an issue which is often misunderstood both by schools and business. And, I am also not a lawyer so I cannot give legal advice.
The FRCP does not require anyone to archive anything (with the exception of the litigation hold provisions). What it does say is IF anyone in the “party” has a copy of anything, then you must produce it. The party is often understood to be faculty, administrators, staff, directors, Board members, some consultants and some contractors. Basically anyone who can give or receive direction.
So, what is the deal with email archiving? The issue is that many people keep copies of email messages on a laptop or PC. The FRCP can be met by retrieving relevant emails from every laptop and PC. Most schools decide it is easier and cheaper to centralize email collection than to do that. This email archiving rules.
What about Twitter and IM? Well, the same rule applies. If your staff keeps a copy of their conversation, it is discoverable. But, if it is not kept, then you are not obligated to keep it.
I wrote a whitepaper on this topic and the issue of litigation hold, entitled Email Archiving Requirements For
Schools and Local Governments. Feel free to download it at http://www.inboxer.com/wp_archiving_in_education.shtml.
Good points Roger and I will forward that on to my guest author at the Edjurist on this topic. But, we are doing a series on this of which this was just the intro post. It looks like one of the later posts in the series is going to address e-mail archiving as well. In fact, looking at your blog, the whole series on FRCP, discovery, and electronic documents at the Edjurist will probably interest you.
E-archival is a fluid topic, with few simple rules. However, I’ll hazard a general statement: To the extent that key employees of any enterprise (school or otherwise) are using e-mail or instant message to transact substantive business (e.g., hiring and firing, internal control or contract negotiation), the enterprise is wise to strive to keep records in a centrally-managed archive. –Ben http://hack-igations.blogspot.com/2008/04/reducing-volume-of-e-mail-archives.html
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