Council Meeting

Held Wednesday, September 28, 2011

Host: Ms. Bonita V. White

INTRODUCTION

Ms. Delia L. Johnson, Co-Chair of the Council and Director, Office of Civil Rights for International Broadcasting Bureau, opened the meeting with a few remarks and then asked the attendees to give their names, agencies, and positions. She thanked Bonita White, Director, EEO Compliance and Operations, HHS, for sponsoring this meeting.

Jorge Ponce, Co-Chair of the Council, provided an update on the time schedule for the release of the 2010 EEO file by the Census Bureau. He indicated that the EEO Special Tabulation will be produced with the 2006-2010 American Community Service’s five-year file. It will be published in December 2012, and will be accessible through http://factfinder2.census.gov/faces/nav/jsf/pages/index.xhtml. Consequently, federal agencies will continue to use the 2000 Census benchmarks when preparing their FY 2011 MD-715 reports.

E-DISCOVERY

Sarah M. Montgomery, Senior Litigation Counsel for the U.S. Department of Justice, gave a presentation entitled “E-Discovery,” regarding the requirement for federal agencies to exchange electronic documents during discovery in federal litigation, as well as retain these records during the litigation of these cases.

Ms. Montgomery explained that E-discovery arises when electronically stored information (ESI) exists. ESI includes such things as native files, electronic files, and electronic documents. Moreover, ESI is broadly defined to include e-mails, office files, voice mail messages (cell or office), text messages and instant messages, access logs and surveillance tape, digital images/.wav files, and blogs/Internet – regardless of whether they are stored in the office or at home. Using data from years ago, she indicated that 1 e-mail is about 2 pages long; 1 word document is about 5-8 pages; 1 spreadsheet is about 35 pages; 1 CD (640 MB) is about 48,000 pages or approximately 19 boxes; 1 DVD (4.7GB) is about 350,000 pages or 140 boxes; and 1 hard drive (80 GB) is about 6,000,000 pages or 2,400 boxes. One hour reviewing each box would require 60 business weeks.

Ms. Montgomery pointed out that one of the most popular types of ESI is what is called meta-data – which reveals who wrote, edited relevant documents; who opened them and when; whether they were privileged communications; whether there were any previous attachments. In other words, with meta-data, you get much more information than if you received just a mere paper document or a mere electronic version of a document. During litigation, it is the meta-data that everyone is after.

Ms. Montgomery cautioned that you cannot share government databases. If you get a FOIA request to do so, you should narrow the scope of the request. However, she said that relevant information stored in FaceBook, Linkedin, tweets, wiki leaks are fair game and must be turned over.

She discussed the facts of Zubulake v. UBS Warburg, LLC (S.D.N.Y. 2003-2004). This was a gender discrimination case brought against employer UBS Warburg by a female stockbroker. Employer UBS deleted e-mails and failed to produce relevant e-mails that had been retrieved. A jury awarded $20.1M in punitive damages, and $9.1M in compensatory damages. It also led to an SEC investigation and more sanctions against UBS. The lessons to be learned from this case are: the preservation obligation arises under the common law; client and counsel have an affirmative preservation duty; the duty to preserve ESI cannot be delegated to the client; specific steps must be taken to ensure compliance; and, failure to take reasonable steps to preserve ESI is sanctionable conduct (gross negligence = willful spoliation).

Federal agencies and the U.S. Department of Justice (DOJ) have joint preservation duties of ESI. Agencies have the following responsibilities: identification of key custodians, relevant time frames, and sources of potentially relevant ESI; and, preservation of sources of potentially relevant ESI (agency IT personnel and records managers must ensure that the preservation happens). DOJ is responsible for: identification of additional sources of potentially relevant ESI as the litigator; and, preservation of sources of potentially relevant ESI (verify what’s been done; evaluate if anything else needs to be done; and, review agency documentation).

Ms. Montgomery stated that the duty to preserve material evidence arises not only during litigation in federal courts, but extends to that period before litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation (which might entail the processing of discrimination complaints through the administrative process). Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4^th Cir. 2001).

Ms. Montgomery explained that a reasonable anticipation of litigation arises when an organization is on notice of a credible threat that it will become involved in litigation or anticipates taking action to initiate litigation. (Guidelines 1, The Sedona Conference. Commentary on Legal Holds: The Trigger & the Process (Sedona Conference, Working Group on Electronic Document Retention & Production, August 2007).

Ms. Montgomery next explained the different scenarios for when the different parties in federal litigation are on reasonable anticipation of litigation. For plaintiffs, when decision to send cease-and-desist letter or notice of violation; referral to or evaluation by DOJ of potential claims arising from specific events; approval to intervene in qui tam (whistleblower) sought; written preservation request; or, a promise to preserve. For defendants, when credible information that it is a target of legal action (e.g., credible cease-and-desist letter); some administrative claims; letter from counsel indicating intent to file suit; written preservation request; or a promise to preserve. For non-parties, when credible information received that it possesses relevant ESI that may be sought by a party to litigation (e.g., receipt of a subpoena); or, a promise to preserve.

Ms. Montgomery discussed some recent, government-sanction cases.

In Moore v. Napolitano (D.D.C. Jul. 15, 2010), the plaintiffs (a group of African-American Secret Service agents brought an employment discrimination class acting suit against the U.S. Department of Homeland Security (DHS). The plaintiffs motioned to compel and for sanctions after DHS 30(b)(6) designee testified that the Secret Service had not searched the records of any decision maker in response to Plaintiff’s discovery requests served one year earlier. The plaintiffs sought preclusion sanctions that would prevent DHS from defending against plaintiffs’ discriminatory non-promotion claims. The U.S. Magistrate Judge granted motion to compel, ordering DHS to conduct a reasonable search for responsive documents. The Court held a 16-day evidentiary hearing to determine the appropriate sanctions. The Court found that even one year after the order, DHS had failed to comply, and that DHS’s “failure to conduct a reasonable search for and produce all responsive documents was willful.” The Court ordered that DHS had to pay plaintiffs their costs, including reasonable attorney’s fees of drafting, filing, and litigating the motion to compel and for sanctions.

In re Fannie Mae Securities Litigation (D.D.C), aff’d 552 F.3d 814 (D.C.Cir. 2009), the agency’s non-party records were subpoenaed. The discovery order stipulated that the issuer had to specify the search terms by October 17, 2008; and, that the agency had to search and produce data stored on disaster recovery backup tapes and provide all privilege logs by January 4, 2009. The agency agreed to run search terms of issuer (400+ terms). The agency hired more than 50 contract attorneys and spent $6M (9% of entire budget). The agency was held in contempt for failing to meet the agreed-to-deadline, and the D.C. Circuit affirmed.

In Culler v. VA (C/A No. 3:09-0305 (M.D. Pa. Aug. 26, 2011)), the court ruled that the filing of a formal discrimination process through the administrative process should have triggered a hold on all electronic records relevant to the potential federal litigation.

Ms. Montgomery concluded that E-Discovery is a complex legal area that requires technical expertise and assistance. OGC, OCIO, FOIA, Records, Security, HR, Civil Rights, Compliance, and Program Managers must collaborate to solve this issue. The goal is to develop standardized, repeatable, defensible process/policy/procedures. She indicated that the U.S. Department of Education has an excellent retention of records policy.

She stated that Magistrate Judge John M. Facciola, from the U.S. District Court for the District of Columbia, was a leader in E-Discovery issues.

To reach Ms. Montgomery in the future, you can do so via e-mail at Sarah.M.Montgomery@usdoj.gov.

RECENT MEETING WITH EEOC CHAIR’S STAFF

Delia and Jorge discussed a recent meeting of the Council’s Executive Board with the EEOC Chair’s staff. Both mentioned that they highlighted that the number one priority for the Council was the need for EEOC to issue, in FY 2012, a management guidance on the interference by Offices of General Counsel in the processing of EEO complaints. Delia and Jorge indicated receiving phone calls and e-mails regarding management officials contacting their OGC’s to review, edit, and modify their affidavits pertaining to discrimination complaints where they were named as witnesses or responsible management officials. Jorge mentioned that this same issue had been addressed in the April 2011 Council meeting by attorneys Gary Gilbert and Ernest Hadley.

Delia also discussed asking the EEOC Chair’s staff how they planned to use the registration funds collected from hosting the EXCEL conference. Delia’s point was that considering that EEOC is a federal agency, it should be offering something in return for their investments to the federal agencies – like free training sessions, online training modules, or webinars.

CONFLICT OF INTEREST CASES

Bonita V. White, Director, EEO Compliance and Operations, HHS brought a matter before the Council based on its objectives to: 1) take a leadership role in EEO, civil rights, affirmative action and diversity issues affecting Federal Government; 2) explain issues of concern to the EEO community and serve as a catalyst for change to make existing processes better and 3) network and share information and resources to reduce the isolation of EEO professionals with each other and within their own agencies.

Specifically, Ms. White led a discussion concerning conflict of interest case processing in the Federal sector, in order to:

1) Benchmark/gauge the extent of difficulties experienced by other agencies

2) Identify leading practices

3) Determine interest in developing a systematic means by which to assist each other and/or submit a proposal to EEOC to establish a centralized alternate processing office.

Ms. White indicated that HHS averages between 20-25 conflict of interest cases per fiscal year. The Departmental level EEO Office processes these cases in instances in which the HHS Operating Division EEO staff -- including EEO Directors and/or the individuals to whom the EEO Directors report to -- are involved.

In instances in which Departmental EEO Officials are involved, the complaints cannot be processed in-house. Instead, arrangements are made for these complaints to be handled by an outside federal agency. These arrangements are informal, however, and based on personal relationships. Consequently, if the Departmental EEO Director has been named or identified in a complaint or an OPDIV EEO Director filed a complaint under circumstances that would create the potential for or appearance of a conflict of interest, HHS has entered into agreements with outside agencies on a case-by-case (and usually reciprocal) basis.

Ms. White stated there are challenges and considerations with the complaints being processed by other agencies on a “case-by-case” basis, e.g.:

-Work is performed as a courtesy or via fee for service, using Memorandum of Agreement templates

- Limited staff resources in the processing agency are negatively impacted by engagement in high-profile, highly complex or sensitive cases

- There may be an inability to meet or control processing time

-Witness cooperation w/ processing agency

- Manner in which EEO Counseling is conducted

- Manner in which EEO Services are contracted and/or oversight is performed

-Other agency is not always able to reap the benefit of reciprocity

- Role of OGC from agency where conflict case originated

-Identification of Settlement Officials

-Identification of signatories for Final Agency Decisions

- Who performs appeal processing, etc?

Ms. White suggested that a solution to the challenge is to have a structured approach to processing conflict of interest complaints, perhaps through the designation of a centralized alternate processing office. There was extensive discussion in which other Council members expressed similar concerns and their interest in being a part of the solution.

Ms. White indicated she will transmit an e-mail to Council members asking to volunteers to participate in a consortium of interested agencies, with the goal of submitting recommendations to the Council to forward to EEOC.