• Overview
• Definitions

A. INTRODUCTION

Court decisions and rules now place substantial obligations on public and private organizations to (1) preserve all electronic materials that could be relevant to pending or anticipated lawsuits and (2) retrieve and produce such materials in the course of such litigation.  Failure to meet them may subject Highline Community College and the individuals involved to sanctions and liability.

The scope of these preservation and disclosure duties are broad.  They apply to business-related electronic information wherever it is stored – at a Highline Community College work station, on a laptop or PDA, and even at an employee’s home. The information at issue includes all forms of electronic communications and records such as e-mail, word processing, calendars, voice messages, videos, photographs, and other digital information.

Although these legal duties require that information must be preserved, the preserved information need not be disclosed to the opponents without first being appropriately reviewed to be sure that legally privileged information is removed.  In other words, Highline Community College and its attorneys still can and will take steps to see that information that is legally protected will not be disclosed to the opposing party. 

It is worth noting that the rules concerning preservation of hard copies of records have not changed.  All printed documents under the control of involved individuals must also be preserved.  Also, the new rules do not require Highline Community College to change any general records retention procedures.

To help meet its obligations, Highline Community College uses an Electronic Discovery Committee, made up of representatives from:

§  The Attorney General’s Office

§  Highline Community College Risk Manager

§  Information Technology and Administrative Technology

§  The Public Records Officer

§  The Vice President of Administration as appropriate

As discussed below, this committee will serve as a resource to help assure that Highline Community College’s approach to these issues is consistent and in compliance with applicable laws and Highline Community College procedures.

C.  THE LANDSCAPE OF HIGHLINE COMMUNITY COLLEGE ELECTRONIC RECORDS SYSTEMS

When Highline Community College determines that there is a reasonable anticipation of litigation, responsive electronic records may include, email generated or retained by Highline Community College employees, whether maintained on Highline Community College servers or backed up in “local folders,” on their individual desktop, or laptop or other “client machine.”  In fact, email messages may be stored locally instead of – or in addition to – being kept on an email server.

 In addition to emails, Highline Community College faculty and staff create and use a myriad of other electronic materials ranging from traditional word-processing documents and spreadsheets to databases, digital images, audio, video, web pages, instant messages, blogs, calendars, technical drawings and more.  While many records are stored on network servers that Highline Community College can monitor, individual users are often able to store them (or copy or move them) to individual desktop and portable devices that are beyond Highline Community College’s field of observation or control.

 Highline Community College maintains some system of tapes or other storage media that periodically copy the system’s data to enable the system and its contents to be restored in the event of an emergency.  This backup system recycles the storage tapes on a regular basis.  For normal preservation purposes, emergency recovery copies of data are not practically accessible and interrupting their recycling would be impractical and expensive.  As a result, such disaster recovery systems will usually be considered outside the scope of a Notice of Records Preservation, unless otherwise directed.

As required by RCW 40.14.040, Highline Community College Records Officer manages and oversees Highline Community College compliance with state and federal laws and regulations relating to the preservation and destruction of electronic and paper information.

D.  SPECIAL PRESERVATION OF RECORDS

When a lawsuit is filed – or reasonably anticipated – Highline Community College has a duty to take special precautions to prevent the loss of potentially-relevant electronic data.  Unless circumstances require a different approach, the following protocol will be followed to comply with these legal obligations.

  1.         Document Preservation Plan

When a lawsuit is commenced against Highline Community College – or information is received such that a lawsuit is reasonably anticipated – the lead unit (typically, Risk Management, Human Resources, or the Assistant Attorney General assigned to Highline Community College) should develop a Preservation Plan outlining the immediate steps that need to be taken.  The plan (which could take the form provided in Attachment 3) should generally include some or all of the following basic steps:

a.  Identify the operating unit and individuals who might possess electronic data;

b.   Send a Litigation Hold to the appropriate individuals; and

c.   Designate a specific person to coordinate and serve as a contact.

Where the matter is complex or unusual, the following steps may also be considered:

a.   Gather a summary of the hardware and software involved.  (The Computer System Checklists at Attachment 5 and 6 can be useful for this),

b.   Determine whether more aggressive steps (such as “imaging” or sequestering computers, stopping rotation of disaster recovery tapes, or taking snapshots of network folders) are warranted.

c.  Establish a method for following up, which may include sending out reminders, conducting preservation compliance checks, and addressing new questions or issues from agency employees with potential evidence.

The Electronic Discovery Committee should be consulted for assistance with any questions about an appropriate Preservation Plan.

2.                  Litigation Hold

A Litigation Hold will typically include:

a.    A definition of what constitutes a “record” and direct owners of potentially-relevant records to preserve them from destruction or modification (see Attachment 3).

b.   Direction to preserve relevant electronic records and general information on how to do so (which might include the checklist identified in Attachment X).  This may include directing the administrator(s) of relevant system(s) to avoid any centralized or automatic destruction or alteration of such records,

c.    Identification of the categories of information to be preserved,

d.   Contact information for the attorney(s), risk management professional, Highline Community College Technology or other IT professional, and any other contacts.

3.                  Duties of Persons Receiving a Litigation Hold

Receipt of a Litigation Hold does not necessarily mean the recipient is directly involved in the matter.  Rather, it means the evidence which Highline Community College is obligated to preserve may be in the person’s possession or scope of responsibility and that the person, as an employee of Highline Community College, has a duty to preserve such information effective immediately.  In particular, the person must:

a.  Suspend any Highline Community College or divisional procedures or procedures that might call for the routine destruction of electronic records under the recipient’s control.

b.   Discontinue personal practices regarding the destruction of electronic records.  For example, the deletion of possibly-relevant emails, voice mails, drafts of documents, and the like must also be suspended.

c.  Disable any “janitorial” functions, such as the automatic deletion of emails or other electronic records.  The designated computer support person should be immediately contacted if assistance is required to disable such functions.

d.  Protect and preserve all electronic records in their original electronic form, so that all information within it, whether visible or not is available for inspection.  In other words, electronic records must be preserved, regardless of whether they have been reduced to a hard-copy or whether a hard-copy already exists.  

e.    Protect and preserve any hard-copies of electronic records.

f.   Protect and preserve any new information that is generated or received that may be relevant to the litigation after receipt of a Litigation Hold.

g.  Advise the designated IT representative of any personal information that may potentially be affected by the Litigation Hold.

h.    Follow all other specific instructions in the Litigation Hold.

i.   Consult with the designated contact person regarding any questions involving electronic records.

4.                  Litigation:  Actual or “Reasonably Anticipated”

The obligation to preserve evidence arises most commonly when a lawsuit has already been filed.  However, the obligation can also arise when one knows—or should know—that future litigation is “reasonably likely.”  Determining when facts or circumstances are reasonably likely to lead to litigation requires a case-by-case understanding of the facts and the application of experience and professional judgment.

Factors to consider in deciding whether litigation is “reasonably foreseeable” or “reasonably likely” include:

a.   Historical Experience: Look at whether similar situations have led to litigation in the past.

b.   Filed Complaints: Be aware of complaints filed with Highline Community College or an enforcement agency, which may indicate a likelihood of future litigation.

c.  Significant Incidents: Pay attention to events resulting in known and significant injury.

d. Attorney Statements: Examine any statements by an individual’s attorney regarding a dispute with Highline Community College.

e. Employee Statements: Consider statements by Highline Community College employees and officials regarding the potential of litigation.

f.   Initiation of Dispute Resolution Procedures: Give considerable weight to an action by a contractor to initiate a dispute resolution clause in a contract.

g.  Public Disclosure Requests: Consider whether a public disclosure request suggests the likelihood of future litigation.  Although Highline Community College routinely receives public disclosure requests that are unrelated to litigation, some reasonably foreshadow a lawsuit.

h.   Event Reported In the Press:  Take stock of particularly bad events that are reported in the press, where history suggests litigation is likely.

i.   Common Sense:  Use your powers of observation of human behavior and common sense.  If an unfortunate or bad event occurs, especially if it is an unusual event or causes significant damage or distress, it may be reasonably anticipated that litigation will follow.

j.  Risks & Rewards:  If the situation is uncertain, consider the relative costs of preservation against the likelihood of future litigation.  Also consider the risks associated with the possibility of sanctions if preservation efforts are not undertaken.

5.                  Ending Preservation Responsibilities

When the litigation, or the threat of litigation, that prompted the Litigation Hold has ended, the person issuing the Litigation Hold will inform those who received the notice that they are no longer under any special obligations to preserve the identified categories of materials.  At that point, only Highline Community College’s normal retention schedules will apply to the documents.  The Office of Risk Management and Highline Community College’s attorneys will be responsible for applying their own special retention schedules for “litigation” records.

E.  RETRIEVAL OF ELECTRONIC RECORDS FOR DISCOVERY

In most cases, any need to actually produce preserved electronic records will come weeks or months after the preservation has occurred.  When Highline Community College receives a request from an opposing party for production (“discovery”) of electronic records, Highline Community College’s counsel and primary Highline Community College contact (Risk Management, Attorney General’s Office or other unit) will determine the best approach to take in order to efficiently produce a complete and accurate response.  The response may consist of any or all of the following:  (1) supplying the requested information, (2) attempting to obtain a modification of the request (e.g., by narrowing the request’s scope or obtaining agreement as to specific search terms), (3) declining to provide some or all of the requested data based upon expense of production, or other basis, (4) conferring with the Electronic Discovery Committee.

(See http://www.educause.edu/ir/library/pdf/EPO0664.pdf for a discussion of tradeoffs.)

The Electronic Discovery Committee is available for consultation on such issues.

1.                  Options for Records Retrieval

Where some or all of the requested records must be retrieved, reviewed, and potentially disclosed, the following options should be considered to select the best approach to the specific request: 

a.       Relying on the Computer User.  In many instances, it is reasonable and sufficient to simply ask the computer user to identify, copy, and provide potentially-responsive electronic records and to certify that these steps have been taken.  In these instances, the production of electronic data resembles the typical production of physical documents.

b.      Enlisting Highline Community College Technical Support: Sometimes the system administrator or other Highline Community College technical support personnel will directly retrieve the responsive records due to particular concerns about an individual user’s time, skill, or dependability in identifying the universe of responsive records.  Such personnel are often able to bring to bear sophisticated tools for searching and extracting large volumes of responsive records.

c.       Using Outside Consultants: Where identification or recovery of records requires technical expertise beyond that readily available from internal resources, an outside firm may be called upon for some or all of the work.

2.                  Factors to Consider in Records Retrieval

a. Thoroughness: The approach in a specific case needs to be reasonably calculated to gather all potentially relevant records.

b.Operational Efficiencies: The activities required should be operationally efficient to ensure timely preservation and processing of the data.

c. Individual Privacy: The processes implemented to respond to electronic discovery must take into account personal privacy concerns.

d. Risk of Data Loss:  Reasonable steps will be needed to protect data from loss through inadvertent or intentional deletion of files or loss of data storage media.

e.Individual Disruption: Procedures should take account of the potentially significant impacts in terms of time and distraction for individuals named in the lawsuit.

f.Procedural Consistency: Highline Community College must ensure that procedures developed to meet these new rules are consistently followed and executed.

3.                  Post-Retrieval Review

As potentially-responsive electronic records are gathered, Highline Community College attorneys will review the retrieved data for legal relevance and privilege or other protected status, and will handle all formal and informal responses to the discovery requests.

4.                  Post-Production Duties

The duty to preserve and produce information related to a lawsuit does not end with an initial production of records.  Relevant information and records generated after the Litigation Hold must be preserved for future retrieval as the lawsuit progresses.

Attachment 1: Flow Chart

Attachment 2: Frequently Asked Questions

Attachment 3: Document Preservation Plan (Sample)

Attachment 4: Litigation Hold, Key Provisions

Attachment 5: System Checklist

Attachment 6: Computer System Checklist

Attachment 7: Statement of Compliance

Created 5/06/2008

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