Tennessee Agencies Are Spending ‘A Huge Amount Of Money’ To Store Emails For Lawsuits

DCS’ Jim Henry describes the department’s troubles to Gov. Bill Haslam. File Photo

During a recent budget hearing with the governor, Department of Children’s Services Commissioner Jim Henry had difficulty keeping a straight face when he got to one particular line item.

“Litigation hold on email storage is $865,000, which, you know, is a huge amount of money for us to pay just to store emails,” he said. It’s a figure expected to climb to $1.1 million. Just a few years ago, it was almost nothing.

Tennessee state agencies are spending millions of dollars on email storage, in many cases because of court orders aimed at ensuring that potential lawsuit evidence isn’t being hidden or destroyed.

DCS’ sum stems from a 14-year-old federal lawsuit brought by a New York-based child advocacy firm that sued the state over claims of unsafe conditions in Tennessee foster homes and other allegations of systemic issues plaguing the department. The $865,000 is just a fraction of the $32 million the suit has cost DCS over two fiscal years, but it illustrates an issue that may surprise some taxpayers: a lot of public money is spent on moving and preserving email communication, a task most people don’t consider an expense at all.

Some state employees referred to a court-issued 40-page document detailing how agencies must comply with email storage requirements. They say it’s caused work disruptions and stole away time from other duties.

It sometimes requires a third-party vendor to come in and transfer over hard-drive information. And it affects not just the primary agency being sued, but any agency that has had communication with the agency being sued. Which is to say, governor’s office staff would have to turn over their hard drives in suits against DCS, since there is probably lots of communication between DCS and the governor’s office.

According to Lola Potter, spokeswoman for Tennessee’s Inspector General, the state is expected to spend $1.6 million this fiscal year on paying staff and outside firms to save emails.

But there are litigation-related email storage services in a number of state agencies that are not included in that total. For example, TennCare has “litigation holds” on about 20 lawsuits, and they spend more than $1 million a year on transferring and storing employee emails connected to the suits, said TennCare spokeswoman Kelly Gunderson said.

Michele Johnson, an attorney and executive director of the Tennessee Justice Center, which has been involved in lengthy lawsuits with state, said there’s nothing unusual about spending taxpayer money on email storage.

“The current state of law for anybody who is involved in litigation is that they have to save anything that might be proof in the case,” Johnson said. It’s “understandably a fair thing if you don’t think the government is above the law.”

Johnson notes that it’s not the parties suing that state that demand that emails be saved — court orders are responsible for that. It may seem costly, but she says it’s a necessary expense to guarantee that state agencies are not erasing potential evidence in cases.