Fred-

I don't think you're off the wall, but I also don't think there was ever an
obligation on the part of the District to implement an ERM for the purposes
of managing e-mail or any other content.  You're definitely right that IF
THEY HAD one, conducting a search would be substantially easier, but the way
the request was structured made it seem like a "fishing expedition", and I
think that weighed heavily in the Court's decision.

Additionally, as they pointed out, the value of the case (if anything was
found and a judgment were made in their behalf) was far less than the cost
of discovery.  Much of what was pointed out relative to the privacy concerns
for the teachers, the district, and the students make for a compelling case
of what it would entail to create an e-mail management system for these
records and it would definitely be non-trivial.  And if you have students in
public school k-12 programs, I'm sure you know how 'rich' their budgets are
and how fully featured their IT staff are. =)

Two years ago, I was involved in a case with a school district related to
someone questioning the capabilities of an instructor and whether their
decisions on selection of students for certain programs was completely
objective, and if the process was transparent.  I can tell you that
requesting information on a tenured instructor is not an easy task, and when
the union gets involved, it becomes even more difficult. I can also tell you
that it isn't uncommon for a district to bow down to the pressures of a
legal request when they feel there is a potential of a loss and it will
result in them paying a judgment.  

But all of that said, ask any public school district and/or a specific
campus if they have a records retention schedule, funds for management of
servers and e-mail, a structured backup system, an electronic records
management application (even for their critical documents) and in 9 out of
10 cases, the answer will be...  HUH?!?!?!?  

Most districts capture the most critical information from their students on
paper and file them in cabinets locked in the administration wing, and there
are no second copies... and some of these records DEFINITELY qualify as
"vital".  The only thing that ALWAYS gets on the electronic system and is
backed up in multiple locations are the grade and transcript information.

I don't find the ruling absurd, in fact, I think it was correct based on
what was requested, the burden to produce, and the relative cost compared to
the value of the suit.  And that's what the changes to the FRCP were really
all about.  

Vendors are trying to convince everyone that the ESI changes mane every
organization has to keep everything forever and they have to do it in a
manner that you can produce everything to prove or disprove your innocence
or guilt. That's really not the case.  The changes were intended to simplify
the effort and provide a structure to ensure both partied understood what
was required of them up-front.  I think more entities will learn how this
works and begin crafting better demands for information and I also think
more organizations will realize this and understand they need to find more
effective ways to manage the records that they DO RETAIN to ensure they can
respond in the least expensive manner to data requests in the future.

Larry

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