Sanjog Aul [00:00:00]:
Welcome listeners, this is Sanjog Aul, your host, and the topic for conversation is Government eDiscovery Needs and Challenges, and I have with me Allison Stanton. Allison is the Director of eDiscovery for the Civil Division of the United States Department of Justice.

Sanjog Aul [00:00:21]:
So how is your work going? How busy are you nowadays?

Allison Stanton [00:00:26]:
We are quite busy here. It has been a very interesting year with good developments in both the technology and the law.

Sanjog Aul [00:00:35]:
Now, busy is good, I’m assuming, and as part of the series that we are currently running on eDiscovery, the first question I’d like to ask you: when it comes to eDiscovery, what is so unique about the eDiscovery related challenges that government agencies may be facing?

Allison Stanton [00:00:53]:
It’s a very good question. One of the interesting things to keep in mind is that the Civil Division of the Department of Justice does both affirmative litigation, meaning we do civil investigations, for example in fraud matters, and we also do defensive litigation, which means we defend just about every single federal agency in the United States. So when they are sued, we also have to do discovery and litigation for them as well. One of the really big challenges we see is that there is a great diversity of the types of cases, the types of data, and the sophistication of opposing counsel that we’re dealing with, all over the country in all different types of matters. We also see challenges with resources, in how we can make sure that everything is appropriately resourced for eDiscovery matters and for litigation. We are big proponents of making sure that people understand that to get a return on investment does in fact require an investment of resources, because a lot of this area is very technology heavy.

Allison Stanton [00:01:55]:
The other thing that we have been focusing a lot on lately is working with the agencies, and particularly the CIOs in the agencies, in how to proactively plan when they’re moving their systems, for example to the cloud, as there’s a cloud-first initiative with this administration. So working with the CIOs to make sure they proactively plan for eDiscovery and for litigation when they’re setting up their systems and procuring different tools and systems.

Sanjog Aul [00:02:21]:
Now, we are, anyway, going digital when it comes to government, and we also know that as part of going digital, and you mentioned cloud, there have been situations where government is not the fastest when it comes to overall adoption of the new changes that are brought about. So when we take eDiscovery, what’s happening in this context?

Allison Stanton [00:02:42]:
It’s interesting because I did come from the private sector. I joined the department about two years ago, came from a very large international law firm where we dealt with clients of all different shapes and sizes, but primarily Fortune 500, Fortune 50. One of the comparisons that I like to make with the federal government is that we are steering an ocean liner as opposed to a jet ski. So there is a lot of effort and a lot that has to move in certain directions, in particular in the direction of progress. I think the cloud example is a very good one to show how the eDiscovery needs, both technological as well as legal and compliance, are really starting to permeate into technology at the government, and I think in some cases at a faster rate even than the private sector. So for example, working with the CIO Council and the CAO Council, we were able to put out a white paper that highlighted a lot of the important proactive thoughts that CIOs need to take when moving to the cloud. It’s publicly available on cio.gov and it’s called Creating Effective Cloud Computing Contracts for the Federal Government.

Allison Stanton [00:03:52]:
And obviously the focus is on federal agencies, but it goes into the different types of legal considerations that organizations should have as they are planning to move to the cloud: for example, how you set up their contracts, what the relationships are between the service provider and the agency and intermediary, making sure that you proactively think about eDiscovery when you’re setting up those systems, because there are great cost benefits in planning ahead and making sure that you have those capabilities in place when you move to the cloud. That’s an example of where the federal government, I think, is at least on par, if not a little bit ahead of the private sector, in trying to think about these issues proactively. We’re also doing a lot of awareness and training in the government about eDiscovery, and really taking a hard look at what types of technology we bring in-house to the organization, particularly DOJ, as well as the agencies, to be able to do eDiscovery, but also partnering appropriately with others outside to be able to fulfill eDiscovery needs. We’ve already had a lot of those capabilities, but we’re expanding them more and more. I think one other big indication that the government is really changing is the importance of eDiscovery and the development of the Law and Technology shared space. For example, my position was a brand new position that was created two years ago, and I report directly to the head of the Civil Division at the Department of Justice, because it is a priority to make sure we have our hands around the legal as well as technological issues. It’ll take time, but we are making great strides.

Sanjog Aul [00:05:26]:
Now, when it comes to eDiscovery, when we talk in the private sector, we do say, yes, it’s important, but at the same time it’s cost prohibitive, and we try to balance the risk and the cost, or in some cases we also try to find technology changes and processes and human intervention to ensure that we get the job done without breaking the bank. So when we look at this government sector, isn’t this something that may not be looked at in terms of the dollars, because it’s taxpayers’ dollars versus coming out of an organization or a corporation’s pocket?

Allison Stanton [00:06:01]:
I would absolutely disagree with that assessment, respectfully. Budget, and making sure that the appropriate resources are used and appropriately scaled for the matter, is a very high priority for the agencies and particularly the Department of Justice. It is nowhere near the thought that, well, since it’s coming from someone else’s pocket, we don’t take as much care. In fact, it’s exactly the opposite, a more heightened awareness. We are held to a higher standard, for the courts in many cases and for the public. We still have the same, if not higher, concerns about goodwill and trust with the public, and the same with guarding the public fisc and making sure that we are responsibly carrying out our priorities for the taxpayer. That is why you see a lot of effort at very high levels of the department, as well as government wide, looking at how we can be efficient and use this technology and decrease costs for litigation, both by integrating technology into the way that we do litigation, but also with how we dialogue with opposing parties or subjects in investigation, to really try and be responsible about that.

Allison Stanton [00:07:15]:
So I would submit that there is even more heightened awareness of making sure that funds are spent appropriately, not only because we have that civic duty. Frankly, as I said, I’ve come from the private sector, and I was very impressed with the degree of professionalism and sense of responsibility that every single federal employee I’ve worked with has for the funds that they are using for their litigation. So that sense of importance is very much there, in addition to the fact that there are very real budgetary constraints. Unlike organizations, agencies cannot just shift funds around in order to be able to pay for litigation. We have very strict guidance and requirements from congressional appropriations as to what funds can be used for. They can be used for the core mission of an agency, for example helping with oil spills and disaster recovery, helping in hurricane emergency situations, helping with health outbreaks, investigating mortgage fraud. So there’s a very specific mission that we have and that we are allowed to use funds for, and we do take very seriously what we can and cannot do.

Allison Stanton [00:08:28]:
And because we don’t have the flexibility that many private sector companies may have in moving firms to handle litigation, we do have to be very vigilant and very attuned in how to use the funds for litigation, sometimes more, I would think, than some private sector folks.

Sanjog Aul [00:09:36]:
Now, welcome back. So given the sheer size, scope, and scale of what the government must deal with, how big do you think the costs and risks are for government in handling eDiscovery? Do you think it’s like boiling the ocean, and we are going to be looking at a very large-scale effort?

Allison Stanton [00:09:55]:
It’s a very interesting question because we deal with cases of all different sizes in the Civil Division. We have everything from the deepwater oil spill disaster and Katrina, if you will, where we’re dealing with numbers and numbers of terabytes of information, and then you deal with other cases that are quite smaller. But when you add everything together, it is quite large, and our litigation is growing at a pace where we can see very soon the petabytes are going to be the volumes of data we’re dealing with. Right now, I would say some of our average pieces that go to discovery are in the multiple terabytes range of a certain type. So it is definitely a very large volume, and government-wide, you can just see that multiplying. So the costs that go along with that, we’re trying to figure out the different ways of dealing with that.

Allison Stanton [00:10:51]:
And it is always interesting when you talk to people about how they define big data. When we explain the volumes that we’re looking at and dealing with, we are dealing with those big data issues, in the tens if not hundreds of terabytes range sometimes for individual cases. So I think one of the things that we’re really looking at is leveraging the technologies and trying to partner with the agencies, when the agencies are involved, and the CIOs and OCIOs of those agencies, to find ways of appropriately gathering that information and then going through the information, and really working with opposing counsel and opposing parties on how do we make sure we’re not caught up in the fact that there’s a lot of data and get away from the actual merits of the case. Are we just going to be looking at data for the sake of looking at data, or do we go back to really thinking about what are the merits of the litigation, what do we really need to find and do, and not just get overwhelmed? So some of those costs we see related to the volume, and then we also see it related to the types of information that we deal with, as social media is a source of information that is growing more and more. A lot of the handheld devices or tablets are new common media that information is stored on, and really trying to develop and think about the ways that information can be preserved and collected, both for ourselves as well as when we’re dealing with opposing parties. So these are different types of areas where we see unexpected costs sometimes, because people did not proactively plan on those different ways to collect the information, for example from a tablet, if they move to a tablet type of media at their organization, or from a smartphone, because litigation will happen.

Allison Stanton [00:12:45]:
It doesn’t matter the size of your organization. You will have an employment suit. You will have some sort of litigation happen where you do need to collect and preserve information, and really trying to think through what those costs are. So, because of the size and types of information, we are looking at how do we reduce those costs in different creative ways.

Sanjog Aul [00:13:06]:
Now, when we look at government, we somehow feel it’s a different animal. So when it comes to deploying the strategies and solutions to handle and address the eDiscovery related challenges, do you think it’s the same as what you always would be doing in a commercial sector, or would you say there’s some commonality and some customization?

Allison Stanton [00:13:26]:
I think there is definitely some commonality, and for me it was very interesting coming from the private sector, from having worked with Fortune 500 companies and CIO shops in the heat of either a government investigation or a civil litigation. I can definitely see how some of the solutions that we have developed in the private sector are already being used in the government, or are definitely applicable in the government. However, there are some very important differences. The types of data that we have here are unique. The type of security concerns and safeguards that have to be in place are unique, and the fact that we very much do need to make sure that we are conscious of the public’s trust over what we do with information that is provided to the government, it is very unique. There are a lot of different privacy and security concerns that don’t exist in the private sector that do exist in government, that sometimes do result in higher and different requirements for tools, for technology solutions.

Allison Stanton [00:14:35]:
And I know it can be frustrating sometimes for folks looking from the outside in as to why did something cost or take so much time. Don’t you just have email data like we have email data? But there are definite, real differences in some respects to the type of information and the type of trust that has been put in us to maintain that information. That is different from the private sector. So to a certain degree, there are tools and processes that can be adapted, and have been and are continuing to be adapted, from the private sector to the public sector, in government, but there are very real differences in some very sensitive areas.

Sanjog Aul [00:15:13]:
How do you expect this eDiscovery, and the corresponding available solutions and finally their adoption, to change in coming years? What advice would you like to give to the government IT people, IT executives, as well as the legal executives who are handling eDiscovery for the various departments and agencies?

Allison Stanton [00:15:33]:
I think the biggest advice there is to remember that there is a lot of good, intelligent brainpower in the federal government, and it’s often in places where you wouldn’t think to look to partner. Keep in mind, CIO and OCIO shops, that you can find important stakeholders and allies around your organization in the legal department, in OGC, in other regulatory areas, like your Chief Privacy Officer, your FOIA Officer, your records managers. Those are important partners to all be working together in an organization, private or public, because if they all start out on the same page and have the right type of meetings and dialogue about what type of solutions the organization needs technologically, as well as legally and operationally, you can avoid a lot of both conflict and costs down the road. Take for example the cloud. If you have the right people in the room, your records folks, your FOIA folks, your eDiscovery, privacy, security, and then your IT staff, all together sitting and planning proactively what you need that technological solution to look like for your organization, you won’t have the instances in the future where a system is built and then, for example, the lawyers run in and need the system to do something that it wasn’t set up to do. So I would highly encourage both those in the public and private sectors to take a look at how IT systems have many different consumers and users for different reasons, and to get a clear sense of the requirements that are needed to help move the mission of that organization forward by partnering with people around your organization. We’re all on the same team.

Allison Stanton [00:17:32]:
We all want to make sure we are saving costs as well as moving the mission forward efficiently. So if you do that proactively before there’s an issue, I have seen great success stories there, and that’s what I would wish and hope that your listeners think about.

Sanjog Aul [00:17:48]:
Once again, thank you so much, Allison, for sharing your thoughts and insights about how eDiscovery can be best handled with government agencies.