FRCP? What's that? My point exactly. The vast majority of us in education, especially K-12, are woefully unprepared to deal with the new Federal Rules of Civil Procedure. These are the rules that went into effect at the end of last year requiring all of us to archive and be able to produce virtually all electronic communication created on school equipment (presumably both infrastructure and actual hardware) in case of a lawsuit. A recent informal poll reported by eSchool News found that 90 percent of ed tech specialists didn't even have a compliance plan in place, let alone the hardware, software, and/or third party support to do anything about it.
So is this a big deal? Well, in a word, yes. While my district is in exactly the same boat (no money, no time, no sense of urgency, and certainly no plan), we all stand to lose big time in a legal battle. In said hypothetical legal battle, a judge can demand records of emails, instant messages, and any other electronic communication. While schools can argue hardship and undue burden as reasons for not complying with the new archival rules, the amended rules actually give the courts the right to reject this argument:
"On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause..."
Click here to read the amended rules in their entirety.
While these rules are not much of a problem for corporate America, where such policies have been in place for some time, such is not the case in K-12 education. At the same time, educators are exposed to a high degree of liability and potential litigation by parents, administrators, unions, students, etc. While many ISPs and third parties are beginning to offer archiving solutions, particularly relating to email sent via their servers, it is unclear how to deal with communication through other tools and services.
We can ban the use of messaging software and block ports, websites, and services in support of the ban. However, this interferes with legitimate and useful communication from which our students and their parents genuinely benefit. How about other email services like Gmail or Yahoo? The cost of providing all students and staff with email accounts on school hardware can certainly be prohibitive and is often supplemented with free individual accounts that we cannot monitor. Besides, I have no doubt that some union type would be up in arms over changes in working conditions. It wasn't pretty when I merely attempted to update our staff computing policy 2 years ago. I can't even imagine forcing the use of a school-run email and messaging service and imposing penalties when the use of other services was detected.
So what are we to do? First of all, if you don't have a plan in place already, summer is here. Draft one while you're sitting on the beach. Secondly, try to find a way to provide students and staff with messaging and email services that can be monitored and archived. Google Apps for Education comes to mind, although your ISP and/or student management system may already have potential solutions for you. The easier you make it for everyone to use school-sanctioned services (and thus, services that you can actively manage), the more likely they will be to use them instead of "rogue" alternatives. Finally, contact your school counsel. This is not for the faint of heart and real legal advice is certainly in order. Everyone needs to weigh in on this and be brainstorming solutions over the summer to avoid ugly litigation in the fall.