NLRB: NxGen Case Management, E-Government and E-Discovery

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1 NLRB: NxGen Case Management, By: James G. Paulsen, Assistant General Counsel, OGC and Bryan Burnett, Chief Information Officer, OCIO, National Labor Relations Board A. Next Generation (NxGen) Case Management System This system will replace 12 separate legacy systems with a unified solution supporting customer relationship management, document management, collaboration, business analytics and web-based services for external constituents. 1. NxGen is based on three off-the shelf (COTS) products: Oracle s (Siebel) Public Sector and Web Center, and EMC s Documentum. 2. It is an enterprise system that will contain case information, events and related documents. 3. NxGen will be the legal research tool of for the Agency. 4. It is being used by the Office of Appeals of the General Counsel for all case processing. 5. Currently, two pilot Regions are utilizing NxGen for case processing: Region 9, Cincinnati and Region 10, Atlanta. All Regional Offices use NxGen to process appeals and electronic filings. 6. All Regional Offices are working towards creating electronic case files that will eventually become the Agency s official case files and substantially reduce our retention of paper documents. Other benefits include: a) Improves collaboration on cases by various branches of the Agency, in particular Regional and Headquarter Offices. b) Allows greater telecommuting and enables Board agents to work more effectively when in the field. c) Supports the Agency s Continuity of Operations Plan in cases of emergency and pandemic. d) Eliminates cost of paper, paper storage and paper transportation. 7. We will implement NxGen in all Regional Offices in While there are many advantages for the Agency, when NxGen is fully deployed, we will make information and documents that are FOIA-able available to any interested party on the website. NLRB: NxGen Case Management, Page 1 of 6

2 B. E-Government Initiatives 1. Currently, there are two systems on the Agency s website, that provide case status information: a) ECIS: detailed case status information from the Office of the General Counsel s legacy case tracking system. b) Board Case Search: detailed public information regarding cases pending before the Board, including the case docket and related documents maintained by the Office of the Executive Secretary. c) Additionally, all FOIA-able data from Office of the General Counsel s legacy case tracking system from 10/01/1999 to the present is uploaded monthly to data.gov. 2. E-Filing: the Agency has deployed a single E-Filing system that allows documents to be filed with Regional Offices, the Division of Judges, and the Office of the Executive Secretary and Headquarters Offices, including the Office of Appeals. a) In November 2009, the NLRB released this new unified system that allows parties to file all documents with the Agency, with the exception of the charge and petition, petition for an advisory opinion, and documents more than 20 MB in size. New features include an improved, intuitive user interface that dynamically assists users in filing, based on the type of case selected. Users also have expanded filing options, including using the system to request an extension of time to file an appeal. The Agency benefits from unified document routing of E-Filed documents throughout the Agency through NxGen. b) Users who register with the NLRB through the website can have certain information about their profiles saved so that the process of E-Filing documents is expedited. c) During the coming year, we hope to add electronic filing of charge and petition to the Agency s E-Filing system. d) Under the E-Filing system, a document will be considered timely filed if the transmission of the entire document through the Agency s website is accomplished before midnight in the time zone of the receiving office on the due date. e) From November 2009 through March 18, 2010, the Agency has received 6,487 documents through the E-Filing system. f) To assist the Agency in this process of moving to electronic case files, we strongly encourage all parties to submit NLRB: NxGen Case Management, Page 2 of 6

3 documents to the Agency electronically through our E-filing system. 3. E-Service: The Agency recently launched a system that allows parties to register for E-Service of Board and ALJ decisions. a) By going to the Agency s website and registering for E- Service, a party will receive an notification immediately upon issuance of the Board or ALJ decision rather than being served by U.S. mail. The notification contains a link allowing the parties immediate access to the decision online. b) In addition, parties that register for E-Service also receive from the Board a courtesy notification of any document that is E- Filed in a case in which they are a participant. This notice will provide a link to the document that was electronically filed. c) As of March 18, 556 parties to NLRB cases were signed up for E-Service. All Regional Offices have signed up for E-Service. 4. Service and E-Filing: a) On January 30, 2009, the Board amended its Rules and Regulations to provide that when a document is filed electronically with the Board, the Division of Judges or a Regional Office through the Agency s website, and is required to be served on another party to the proceeding, the other party should be served by , if possible. b) If the other party does not have the ability to receive electronic service, the other party shall be notified by telephone of the substance of the transmitted document and a copy of the document shall be served by personal service no later than the next day, by overnight delivery service, or, with the permission of the party receiving the document, by facsimile transmission. C. Electronic Discovery and the NLRB What Steps Has the Agency Taken 1. NLRB and Electronic Discovery: Electronic discovery amendments apply in all civil cases filed in federal court on or after December 1, The NLRB pursues a number of different types of cases in federal court: for example, Section 10(j) and 10(l) injunctions and subpoena enforcement proceedings. In addition, there may be federal suits against the Agency and other civil litigation such as EEO or MSPB claims. NLRB: NxGen Case Management, Page 3 of 6

4 2. Initial Disclosures: Amended Rule 26 requires that initial disclosures must include a description by category and location of all potentially relevant electronically stored information. Rule 26(a)(1)(B). 3. Duty to Meet and Confer: Rule 26(f) requires the parties to confer early in the case to discuss any issues relating to preserving discoverable information and the disclosure or discovery of electronic stored information, such as the form of production and the matter of privilege. 4. Knowledge of Agency Electronic Systems: For the NLRB, this means that Board attorneys, after consulting with OCIO and the Records Officer, will be familiar with the basic architecture of the Agency s computer systems, where potentially relevant electronic data is located on the computer systems and other storage media, what software was used to create the potentially relevant electronically stored information; and what policies and procedures normally are in place for electronic data retention and backup. 5. Inaccessible Data Sources: Under Rule 26, there is a two-tiered process for discovery of accessible versus inaccessible data. A party is not required, in the first instance, to produce electronic data from sources that are not reasonable accessible because of undue cost or burden. On a motion to compel, the responding party has the initial burden to prove inaccessibility. Thereafter, the requesting party may overcome that proof by showing good cause. Rule 26 (b)(2)(b). NLRB attorneys may identify back-up tapes or legacy systems as inaccessible sources and will seek to demonstrate why it would be unduly difficult to produce information from such sources. 6. Litigation Hold: Amended Rule 37 (discovery sanctions) contains a safe harbor provision, which provides that the loss of electronically stored information that occurs as a result of the routine, good faith operation of an electronic information system will not be subject to sanction by the court absent exceptional circumstances. In most instances, to establish good faith, a party needs to invoke a litigation hold to modify or interrupt routine operations that would otherwise result in the destruction of relevant electronically stored information at the very outset of the litigation or when the litigation is reasonably foreseeable. 7. NLRB Policy Re: Litigation Holds: The NLRB has distributed a policy to all offices providing guidance for managing the discovery of electronically stored information and providing guidance on issuing litigation holds. Some of those standards are: NLRB: NxGen Case Management, Page 4 of 6

5 a. The litigation hold should adequately describe the type of information that should be preserved. b. It should direct that relevant electronically stored information must be preserved and describe the various forms that electronically stored information could take. c. The litigation hold should be targeted to individuals who are known to, or may reasonable be expected to have, relevant information. d. Litigation holds are also to be distributed to the designated Record Officers and the designated OCIO personnel. e. NLRB counsel will monitor compliance with the litigation hold by issuing periodic reminder notices. 8. Impact of NxGen Case Management System: When the Agency deploys the NxGen systems to all offices in 2011, this will greatly enhance our ability to maintain effective litigation holds for case related litigation since all documents relevant to a case will be maintain in the document repository in NxGen in electronic form. 9. Recent E-Discovery Decisions: a. Pension Committee of University of Montreal Pension Plan v. Banc of America Securities, LLC, F. Supp. 2d, 2010 WL (S. D. N.Y. January 15, 2010) (Judge Scheindlin developed a framework for determining when sanctions are appropriate and the level of sanctions for failure to preserve relevant electronic records and to timely issue written litigation holds. Specifically, the Judge considered whether the E-Discovery failures were mere negligence, gross negligence or willful misconduct. In that case, based on the Judge s finding that a party was grossly negligence in meeting its discovery obligations, the Judge provided a jury instruction that the jury may presume, if they chose, that such evidence was relevant and its loss caused prejudice so that the jury may draw an adverse inference in favor of the party that was harmed that the lost evidence would have been favorable to the harmed party.) b. R & R Sails, Inc. v. Insurance Company of State of Pennsylvania, 251 F.R.D. 520 (S.D. CA, Magistrate Judge Louisa Porter, April 18, 2008) (Based on a failure to make reasonable inquiries in record/notes maintained in an electronic system leading to incorrect certifications and failure to produce and supplement initial disclosures in a timely manner, the Magistrate Judge ordered monetary sanctions against defendant and defendant s counsel and recommended that the District Court Judge preclude the defendant from relying on NLRB: NxGen Case Management, Page 5 of 6

6 or introducing any documents, testimony or expert witness testimony which relies on documents or electronically-stored information that was requested by plaintiffs but not produced by defendant). c. Disability Rights Council of Greater Washington v. Washington Metropolitan Transit Authority, 242 F.R.D. 139 (DC, Magistrate Judge Facciola, June 1, 2007) ( While the new amendments to Rule 37 of the Federal Rules of Civil Procedure indicates that, absent exceptional circumstances, a court may not impose sanctions on a party for failing to provide electronically stored information lost as a result of routine, goodfaith operations of an electronic information system, it is clear that this Rule does not exempt a party who fails to stop the operation of a system that is obliterating information that may be discoverable in litigation. As a result the defendant was order to produce and search backup tapes even though it argued that such tapes were not reasonably accessible.. NLRB: NxGen Case Management, Page 6 of 6

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