Should a contractor find itself appealing a contracting officer’s denial of a claim to the Armed Services Board of Contract Appeals (ASBCA) or the Civilian Board of Contract Appeals (CBCA), they will likely engage in some sort of document discovery. In a world with seemingly limitless and inexpensive data storage, cell phone cameras, drone video, and ceaseless emails, even a small dispute can involve vast quantities of data subject to discovery. Combine this with the Board rules that instruct the parties to engage in “voluntary discovery procedures” (ASBCA, CBCA discovery rules) it is vitally important that a contractor and its attorney have an accurate understanding of how relevant data is stored. That understanding can help a contractor minimize litigation costs and facilitate resolution of the claim.

Often the government will insist that discovery be exchanged as processed documents that can be loaded into a document database for easy searching. This format is usually also helpful for the contractor and its counsel as it will allow for easy searching through both your and the government’s documents –this is how you’ll find that smoking gun. Since specialized software and databases are required for processing and hosting data, extra costs are usually incurred. As you can imagine, the more data that goes into the database, the more costs are incurred.

There are many options to minimize the volume of data to be exchanged or the cost of doing so, but this can only be accomplished with a full understanding of the universe of relevant information. Practically, this means that at the outset of the appeal, someone familiar with the dispute along with someone from IT and/or the contractor’s document management team should spend time with counsel to develop a “map” of the relevant data.

With a full understanding of their client’s data, the contractor’s attorney can work with the government to develop a discovery plan that facilitates the exchange of information at a cost proportionate to the needs of the case. For instance, the contractor can start by producing just the “low hanging fruit,” only exchanging the costly data sets if further information is necessary.  Or the contractor can produce the voluminous data sets in their unprocessed or “native” format. Most contractors would likely agree that the sooner the government has a better understanding of their claim and appeal, the sooner the dispute can be resolved. With preparation and communication, this exchange can be done efficiently and affordably.

For an in-depth guide on developing a “data map,” see EDRM’s Identification Guide.

Image Courtesy of Flickr (licensed) by jannekestaaks 

Federal government contractors, grantees and those with cooperative agreements may find themselves in possession of (or handling) government information which the U.S. Department of Defense (DoD) considers to be sensitive or confidential but not considered “classified.” On Dec. 31, 2017, in accordance with DFARS 252.204-7012 the National Institute of Standards and Technology (NIST) Special Publication 800-171 “Protecting Controlled Unclassified Information (CUI) in Nonfederal Information Systems and Organizations” or the “Cyber Clause” went into effect. The purpose of the clause is to provide a uniform standard for the handling of CUI and to provide a roadmap for safeguarding CUI and covered defense information (CDI) that is a subset of CUI.  Specifically, the new regulation focuses on addressing “deficiencies in managing and protecting unclassified information” including “inconsistent markings” and “inadequate safeguarding” by “standardizing procedures” for the handling of CDI/CUI and “providing common definitions through a CUI Registry.

CDI is defined as unclassified information, as described in the CUI Registry that requires safeguarding or dissemination controls and requires, at minimum, the implementation of NIST SP 800-171 controls. Continue Reading DoD Cyber Security Rules Took Effect for Contractors Dec. 31, 2017