Frequently Asked Questions
Electronic Discovery
and
Data Preservation
1. What
do “electronic discovery” and “data preservation” mean?
“Discovery”
is the process by which relevant information is exchanged between
parties in a lawsuit. It is
conducted via production of documents and the taking of
depositions. Federal and state courts
have long recognized that electronic data is
subject to the same discovery rules
as other evidence relevant to a lawsuit. The
issue has received substantial
national attention recently, however, because of a
series of court rulings resulting
in the imposition of huge sanctions on parties for
their failure to preserve
electronic data and because of amendments to the Federal
Rules of
Civil Procedure. Upon notice that a lawsuit has been commenced
against the College (or a charge filed with an administrative agency), or if it
is reasonably anticipated that a lawsuit may be brought (or a charge filed),
the College and all of its faculty and staff members are then under a legal
duty to preserve all evidence, whether hard copy or electronic, that might
become relevant to the lawsuit.
2. What
data need to be preserved?
The
revised federal rules require a party to suspend routine or intentional purging,
overwriting, re-using, deleting, or any
other destruction of electronic information
relevant to a lawsuit, including
electronic information wherever it is stored – at a
College
work station, on a laptop, or at an employee’s home. It includes all
forms of electronic communications
– e.g., e-mail, word processing, calendars,
voice messages, instant messages,
spreadsheets, videos, photographs, information
in PDA’s, and data in any other
locations where electronic information may be
stored. This electronic information
must be preserved so that it can be retrieved –
if necessary – at a later time.
The information must be preserved in its original
electronic form, so that all
information contained within it, whether visible or not,
is also available for
inspection – i.e., it is not sufficient to make a hard copy of
electronic communication.
3. What
will I have to do?
You will
be notified of the duty to preserve electronically stored information
through a notice called a
“litigation hold” (or a “preservation hold”). You will
then be asked to cooperate with
the College Counsel and the ITS Office to ensure that we identify and preserve
all potential sources of electronically stored information in your possession
or under your control. You will be asked to complete and return a questionnaire
identifying all potential sources of electronically stored information. It is
critical that you complete and return this questionnaire without delay. Until
ITS personnel have taken steps to preserve your electronically stored
information, you should be particularly careful not to delete, destroy, purge,
overwrite, or otherwise modify existing electronic data.
4. For
how long will this go on?
Counsel
or ITS will notify you when you and the College are no longer obligated to
retain the preserved data. Generally, this will be when the statute of
limitations has expired with respect to the claim or – if litigation has been
commenced – when the lawsuit and all appeals have been concluded. When the duty
to preserve evidence ends, the archived data will be returned to you or
destroyed, at your option.
5. Do I
need to also preserve data on my home computer?
The same
rules apply to any computer that stores information potentially relevant
to a lawsuit. Thus, if you use
your home computer for College-related business
(including e-mail on your College e-mail account or on a
personal account such
as AOL, G-mail, etc.), you must
preserve the data on that computer.
6. Can I
take personal or sensitive material that isn’t relevant to the case off
my computer?
You may
remove data from your computer (or segregate it from the data that will
be preserved) if you are
absolutely certain that it is unrelated to the claim (e.g.,
correspondence entirely unrelated to
College employees or College
business, income tax returns, your
music library, etc.). However, we often find
that it is difficult at the
beginning of a lawsuit to be certain about what might later
turn out to be relevant. So, you
should examine each and every file you are
considering deleting – i.e., do not make
wholesale deletions of data. You may be
questioned under oath at a later date
by an attorney representing the opposing
party about what data you may have
destroyed.
7. I
already deleted something that might be relevant. Should I be
concerned about that?
The duty
to preserve information arises only when you reasonably anticipate
litigation. Electronically stored information not
preserved before that time should
not create a problem.
8. What
if I am involved in an ongoing matter relating to the person who is
suing the College?
You must
also preserve any new electronic information that is generated after
receipt of a litigation hold that
may be relevant to the dispute (such as an
employment claim by a current employee
where relevant new documents may be
created during the ongoing
employment relationship). ITS will work
with you to ensure the preservation of new data.
9. Who
is going to be paying for the cost of preserving ESI?
The
costs associated with complying with the e-discovery requirements will be
handled in the same manner as other
litigation expenses are presently handled (meaning, typically, the College).
10. Who
will be looking at my data?
Initially,
no one will review your data. If and
when a discovery request is made by the opposing party, you may be asked to
conduct a search of the data or ITS personnel will conduct the
search. ITS will store centrally all
preserved data. You will have the opportunity to be present if and when your
data are ever accessed. On occasion,
before a discovery request is made, the College Counsel might need to review
electronically stored information to assist in answering the lawsuit or to
comply with initial discovery obligations.
11. Who
decides what data will be turned over to the opposing party?
The same
rules of relevance that apply to “paper” discovery also apply to the
discovery of electronically stored
information. Before any data are turned over to
the opposing party, the College
Counsel will review it for relevance and determine that it is not otherwise
protected or privileged.
12.
Since when did we have to go to all this trouble?
Electronically
stored information has been discoverable since the 1980’s.
Because
of the egregious misconduct by several defendants and because of the
ever-widening use of computers, over the
last several years the courts have
developed rules specific to the
preservation of electronic data.
13. What
if I don’t want to disclose my data?
The
College and its employees have a legal duty to preserve, and subject to the
rules governing discovery, turn
over electronically stored information.
In short,
the law does not offer us a
choice. Failure to abide by the law may
result in
judicially-imposed monetary sanctions and
adverse findings in the litigation. We
will take steps to protect your
privacy and to ensure that protected/privileged
information is not disclosed, but
ultimately the court will be the arbiter of whether
sensitive information must be
disclosed.
14. What
should I do with my electronic data if I leave the College?
If you
plan to leave your employment with the College during the pendency of
a lawsuit for which you have
received a preservation hold, you should confer with
the College Counsel
or ITS before relinquishing control of your computer.
15. What
if I have additional questions?
Contact
the College Counsel or the ITS.
[scroll
down for Procedures for Preservation]
Procedures for
Preservation of Electronically
Stored Information
And Responding to Discovery
Demands
in Federal Court Litigation
Preservation
Pursuant to federal case law and
amendments to the Federal Rules of Civil Procedure (FRCP), when the College
“reasonably anticipates” federal litigation, through the receipt of
notification or other information identifying the possibility of a lawsuit or
upon the actual service of a summons and complaint (“notification”), the College
must take actions to preserve all electronically stored information that may be
relevant to the claim. College
Information Technology Services (“ITS”) and the Office of College Counsel have
drafted the following guidelines to ensure timely and accurate preservation and
collection of such data:
1. As soon as practicable after
notification, the Counsel will notify the Director of ITS (the “Director”) of a
new potential or actual claim.
a. Counsel will provide the following
information:
i. Names of plaintiff(s), defendant(s), and any
other known relevant
parties and witnesses (i.e., those who may
control or possession or
potentially relevant data);
ii. Departments or campus locations involved; and
iii.
Timeframe for data preservation;
b.
Counsel will notify the President and other senior administrators as
appropriate.
2.
The Director will identify what
other technology employees should be involved
based on the anticipated parties, witnesses,
and locations identified and nature of the records Expectations and roles will be identified
quickly to establish an organizational and operational approach to preservation
throughout the pertinent parts of the College.
3.
ITS will take immediate steps to
preserve all data held by the College’s
central
network (mail, server space, calendar, etc.).
4.
As soon as practicable, the
Counsel and the Director will meet to discuss the case and develop an initial course
of action. Together they will:
a. Identify the set of data that must
be preserved;
b. Discuss mechanisms, process and
other circumstances that may be
particular to the specific lawsuit; and
c. Modify the generic end user questionnaires
to reflect any lawsuit
specific data.
5.
As necessary, the Director and Counsel
will meet with other staff in affected
areas to discuss immediate needs, identify
data unique to the local department
and create a plan to preserve all required
data (and to reiterate need to preserve
“paper” data as well).
6.
ITS will send out end user
questionnaires to all affected individuals for
completion and return (within 2 days) to ITS so
that all potential locations
of data can be identified.
7.
ITS will work with the affected
area(s) to implement preservation.
8.
The Counsel will send specific
information handling instructions, as may be
appropriate
in a particular lawsuit to all affected individuals to ensure future data
are
appropriately preserved and easily retrievable. These instructions may
provide
that:
a. All future documents created that may
be relevant to case be stored in a
specific
directory;
b. All
future mail correspondence be appropriately stored in a specific mail
folder; and
c. All systems used for future creation of
data potentially relevant to a claim
be backed up on a regular schedule.
9.
ITS will arrange for the storage
of all collected data centrally for future
potential
retrieval and discovery.
Discovery
Upon receipt of a discovery request for
information and data pertaining to a lawsuit subject to the FRCP electronic
discovery rules, the College must take action to develop and produce a response
to this request. ITS will work with the Counsel to develop an appropriate
response. The response may be to supply the requested information, attempt to
obtain a modification of the request as to a different set of data or search
terms, or to decline to provide some or all of the requested data based upon
expense or other basis.
During the discovery phase:
1.
The Counsel will meet with the
Director and other ITS staff to inform them of
specific
requirements of discovery (search terms, data type, timeframe, etc.).
2.
ITS will determine whether the set
of preserved data is sufficient to meet the
requirements of the discovery request
and will notify the Counsel of any
extraordinary circumstances, costs of
compliance, or other concerns.
3.
If ITS determines that the preserved
data is not sufficient to meet the
requirements of the discovery request,
ITS will so inform the Counsel. If requested to do so by the Counsel, ITS will
work to retrieve additional electronic data, whether from network or local data
repositories
.
4.
ITS will perform searches on the
preserved data specific to the outlined
requirements.
5.
ITS will supply the retrieved data
to the Counsel
.
6.
The Counsel will review the
retrieved data to determine legal relevance, privilege
or
other protected status, and will handle discovery.
[scroll down for Litigation Hold Letter sample]
PRIVILEGED
AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
DUTY
TO PRESERVE EVIDENCE
(INCLUDING
ELECTRONICALLY STORED INFORMATION)
Please
read this entire document closely—it describes legal requirements.
Because Centre
College is now on notice that ____(describe
claim)______, the College and all of its faculty and staff members are under
a legal duty to preserve all evidence that might become relevant to this
matter. Any such information in the possession and control of any person who _____(describe involvement in the claim)_______ must be
preserved. Thus, every person possessing any potentially
relevant information pertaining to ______(the
subject of the claim) in electronic or paper form has a legal duty
to preserve all such information, as set out more fully below. The purpose of
this letter is to explain to you the nature of that obligation. I would also
appreciate your forwarding this letter to personnel who report to you and who
may have electronically stored information related to this matter (and sending
me a list of those individuals to whom you have sent this letter).
The following
information may potentially be relevant to the dispute: ________________(list of possible
items)____________________________. Information
may be located in college files,
department files, individual
files of employees involved in the process, and electronic files generated by
all of those who were involved in any fashion in the ______(events related
to the claim)___________.
Please take the
following steps immediately to protect and preserve any information that is in
your possession or under your control until further notice. Specifically, you
(and all involved individuals) will need to do the following immediately:
1. Suspend deletion,
overriding, or any other destruction of electronic information
relevant to this dispute that is under
your control or the control of other involved individuals.
This includes electronic
information wherever it is stored – at your Centre work station, on a
laptop, or at home. It includes all
forms of electronic communications – such as e-mail, word
processing, calendars, voice messages,
videos, photographs, information in PDA’s, and any other
locations where data may be stored. This
electronic information must be preserved so that it can
be retrieved – if necessary – at a
later time. You can be assured that nothing will be produced to
_____(the
complainant)___________ without
first being appropriately reviewed, with legal necessity and
relevancy being determined, and private or
privileged information removed. The information
must be preserved in its original
electronic form, so that all information contained within it,
whether visible or not, is also
available for inspection – that is, it is not sufficient to make a hard
copy of electronic communications. I encourage you and all involved individuals
to contact
Art Moore, Director of ITS, at 238-5575
or art.moore@centre.edu, if you or affected
individuals have any questions whatsoever
concerning the technical aspects of the request set
forth above in this paragraph or have
any questions at all about how to implement this request.
Additionally, Art and his staff
will work with you in the very near future so that we may create mirror images
of all hard drives to preserve them in their current form and to minimize any
interference with your ongoing activities. We are hopeful that we will be able
to facilitate to the fullest extent possible the segregation of personal
information completely unrelated to this matter before your data is archived so
that it does not need to be included in the archived files. We anticipate that
the archives created will be stored by Art Moore’s office.
You will be notified
if there is ever a need to access your archived data and you will have the
option to be present in that event.
When the duty to preserve evidence ends, the archived data will be returned to
you or destroyed, at your option.
2. Similarly, you and
involved individuals must preserve any new electronic information that is
generated after you receive this letter that is relevant to this dispute. This should
be done by creating separate mailboxes and files and segregating all future
electronically stored information in these separate mailboxes and files. In addition, Art Moore will arrange for
regular backups through the Centre network.
3. The rules concerning
preservation of hard copies have not changed. Thus, it remains essential that
you preserve any hard copies of documents under your control. At this point,
steps should be taken to identify all relevant paper files and to ensure the
retention of such files. This is a
critical legal duty and failure to follow these instructions and to preserve
this information has very serious consequences for Centre and the involved
individuals. Indeed, courts have imposed
huge monetary sanctions for failure to abide by these requirements. Art Moore and I can be available to meet with
you to explain further these obligations or to respond to any questions you may
have about this matter. We know this is a major
imposition and we appreciate your
cooperation.
Finally,
I want to stress that we will do everything possible to protect the privacy of
the
preserved data and that the purpose of our
request is to comply with federal law. It is not intended to and should not
suggest any assessment of the merits of ___________(the
claim)________________.
Thank
you for your cooperation.
Sincerely,
James
P. Leahey
Associate
Vice President
for Legal Affairs and Gift Planning
Tel:
238-5224
E-mail:
leahey@centre.edu