Policy Title: Electronic Discovery and Data Preservation
Policy Number: 800-10
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Responsible Officer:
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Chief Campus Counsel
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Responsible Office:
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Office of Campus Counsel
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Origination Date:
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(11/01/2013)
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Date of Revision:
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Initial
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Scope:
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Guidance for Ensuring Legal Compliance in Preserving and Handling Electronically Stored Information Requested in Discovery
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I. Policy Summary
The University of California, Riverside (UC Riverside) has a responsibility to comply with federal, state, and applicable local laws, rules, and procedures regarding the preservation of documents, whether electronic or in any other form, in connection with legal disputes. This policy, which applies to all faculty and staff, addresses the rules on preserving Electronically Stored Information (ESI) relevant to current or potential litigation or other legal disputes. Although the scope of this policy specifically addresses ESI, employees should be aware that the duty to preserve documents related to a legal dispute also covers paper documents and information stored in any format.
II. Definitions
· Agent: A person who is authorized to act for another through employment, by contract or apparent authority.
· Arbitration Proceeding: The hearing and determination of a dispute by an impartial referee selected or agreed upon by the parties concerned.
· Discovery: The process by which relevant information is exchanged between parties in a lawsuit or to an Arbitration Proceeding. It is conducted via production of documents, whether hard copy or electronic, and the taking of depositions.
· Electronically Stored Information (ESI): Material stored in computers and storage devices. This includes any data found in e-mail, voicemail, instant and text messages, databases, metadata, digital images and any other type of file.
· Information Custodian: The individual responsible for overseeing and implementing the necessary safeguards to protect information assets.
· Lawsuit: An action or a suit brought before a court, often to recover a right or redress a grievance.
· Legal Dispute: An assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other. It may be the subject of litigation or an Arbitration Proceeding.
· Legal Duty: Acts which the law requires be done or forborne.
· Litigation/Preservation Hold: The Office of Campus Counsel’s notification of an employee’s or an Agent’s duty to preserve certain stored information. It provides notice to suspend routine or intentional purging of relevant data; including, overwriting, reusing, deleting, or any other destruction of electronic information relevant to a lawsuit, including electronic information wherever it is stored--at a University work station, on a laptop, or at an employee’s home.
· Personal Digital Assistant (PDA): A handheld device that combines computing, telephone/fax, Internet, and networking features.
· Statute of Limitations: A type of federal or state law that restricts the time within which legal proceedings may be brought
III. Policy
A. Introduction
UC Riverside complies with all applicable federal, state, and local laws, rules, and procedures regarding the preservation of documents, whether electronic or in any other form, in connection with legal disputes. Federal and state courts, as well as several arbitration tribunals, have long recognized that electronic data is subject to the same Discovery rules as other evidence. The Federal Rules of Civil Procedure (FRCP), as amended in 2006, make clear that ESI is discoverable in federal civil litigation. California’s Electronic Discovery Act establishes procedures for parties to discover ESI from opposing parties for use as evidence in state court actions. Additionally, the rules of a particular arbitration tribunal may provide guidance on ESI.
Accordingly, upon notice that a Lawsuit or an Arbitration Proceeding has commenced against the University, or upon reasonable anticipation that a Lawsuit or an Arbitration Proceeding may be brought, the University may be under a Legal Duty to preserve all evidence, whether hard copy or electronic, relevant to the legal dispute. The failure to observe this legal duty may result in imposition of significant monetary sanctions and other penalties.
B. Scope
All UC Riverside faculty and staff members are responsible for observing and adhering to this policy.
IV. Responsibilities & Procedures
A. In General
The process of Discovery requires coordination among a host of campus units, including but not limited to, the Office of Campus Counsel, Risk Management, Computing and Communications (C&C), Records Management and Labor Relations (when applicable). Because of the collaborative nature of this effort, the Office of Campus Counsel has established a Discovery committee, with a representative from each of the above offices, to manage and oversee the process of ensuring legal compliance in the preservation of ESI.
In a legal dispute, the University and its employees have a lawful duty to locate, preserve, and, subject to the rules governing discovery, turn over ESI. For instance, the FRCP requires a party to suspend any type of destruction of ESI relevant to a dispute. This includes all forms of electronic communications (e.g., e-mail, word processing, calendars, voice messages, videos, photographs, information in PDAs, and any other locations where data may be stored. This ESI must be preserved so that it can be retrieved, if necessary, at a later time. The information must be preserved in its original form, so that all information contained within it, whether visible or not, is also available for inspection. It is not sufficient to make a hard copy of electronic communication.
B. Responsibilities
Although the information must be preserved, no data will be disclosed without first being appropriately reviewed by the Office of Campus Counsel to determine legal necessity and relevancy, and for removal of all legally privileged information, where appropriate. To ensure compliance with federal and other Discovery rules, the following protocol will be adhered to when the Office of Campus Counsel receives notice that a Lawsuit or an Arbitration Proceeding has been or may be commenced:
· The Office of Campus Counsel will notify the Campus Chief Information Officer (CIO) immediately upon determining the need for a Litigation/Preservation Hold;
· The Office of Campus Counsel will schedule a meeting between Campus General Counsel (CGC) and the CIO to:
o Identify the affected campus units, employees, and relevant parties who might possess the specified ESI;
o Assess the complexity and scope of the efforts to identify, gather, and hold the specified ESI;
o Determine whether an outside vendor is required to identify, gather, and hold the specified ESI;
o Estimate the cost to identify, gather, and hold the specified ESI;
o Propose a source or sources of funding to pay for the effort; and
o Coordinate and facilitate the technical aspects of archiving the specified ESI.
· The CGC and the CIO will meet with the Executive Vice Chancellor and Provost (EVC&P) to apprise and, as needed, provide updates.
· If required, the CIO will identify and contact an outside vendor for the procurement of specified services, involving the identifying, gathering, and hold of specified ESI;
· The Office of Campus Counsel will consult with each affected campus unit to identify who possesses the specified ESI;
· The Office of Campus Counsel will send a Litigation/Preservation Hold to each affected individual (Information Custodian);
· The CIO will identify and assign an E-Discovery team to work with the applicable campus unit Information Technology personnel to identify all data storage devices and ensure appropriate preservation, including the creation of mirror images of hard drives so as to minimize any interference with ongoing activities;
· Affected campus units and Information Custodians will be notified if there is a need to access archived data, and they may be present in that event;
· Affected campus units and Information Custodians must also preserve any new ESI that is generated after receipt of the Litigation/Preservation Hold that may be relevant to the Legal Dispute. Again, all hard copies of documents under the control of the aforementioned entities must also be preserved;
· When the obligation to retain the preserved data ends, the Office of Campus Counsel will notify the affected campus units and Information Custodians;
· When the duty to preserve evidence ends, the archived data will be returned to the affected campus units and Information Custodians or destroyed, in accordance with applicable University policy;
· Records, hard copy and electronic, that are not under a Litigation/Preservation Hold should be stored or destroyed in accordance with the University’s records retention and disposal policy.
C. Procedures
1. Determining When Lawsuit/Arbitration Proceeding is Anticipated for Discovery Purposes
· The dissemination of this policy and its associated procedures serves to advise appropriate campus administrators of their duty to notify the Office of Campus Counsel of Legal Disputes when there is a concern that they may lead to litigation or arbitration.
· The Office of Campus Counsel will determine whether a Lawsuit or an Arbitration Proceeding is reasonably anticipated and a Litigation/Preservation Hold is required. This determination is based on the totality of the circumstances. Factors to be considered may include:
o the nature and specificity of the claim;
o the position of the complaining party and whether that party is known to be litigious;
o whether the threat of a Lawsuit or an Arbitration Proceeding is direct or implied;
o the strength or value of the claim;
o the likelihood that relevant data will be lost or destroyed; and
o the potential media exposure resulting from the claim.
2. Issuing a Litigation/Preservation Hold
Once determined that a Lawsuit or Arbitration Proceeding is anticipated or has been initiated, the Office of Campus Counsel, will:
· Promptly take reasonable steps to ascertain the nature and scope of the dispute and identify the affected campus units and those Information Custodians with relevant information;
· Determine the scope of information to be preserved, reasonably tailored to the nature of the specific claims put forth in the Lawsuit or Arbitration Proceeding;
· As soon as practicable, issue a Litigation/Preservation Hold to those affected Information Custodians with relevant information (i) informing them of their duty to preserve information and (ii) defining the scope of information to be preserved.
o The Litigation/Preservation Hold may be sent via email or hard copy.
o Recipients of the Litigation/Preservation Hold will be asked to acknowledge receipt of the notice.
If sent via email, the Litigation/Preservation Hold may include a return receipt prompt. If sent as a hard copy, it may include a counter-signature block.
The Litigation/Preservation Hold will be signed by Chief Campus Counsel or designee and classified as an attorney-client privileged document;
· If additional Information Custodians with relevant information are identified as the matter progresses, issue Litigation/Preservation Hold to those affected individuals;
· Issue periodic reminders of the Litigation/Preservation Hold with a suggested interval of every three months;
· Keep the Litigation/Preservation Hold in effect until: (i) the Lawsuit or Arbitration Proceeding has concluded or if no Lawsuit or Arbitration Proceeding is initiated; (ii) the matter has been resolved; or (iii) the Statutes of Limitation have expired. The Office of the General Counsel (OGC) will provide assistance to the Office of Campus Counsel in determining applicable Statutes of Limitation;
· At the conclusion of the matter or upon expiration of the Statutes of Limitation, issue a notice to all Information Custodians holding relevant information releasing the Litigation/Preservation Hold and instructing them to resume normal records disposition practices;
· Notify OGC each time a Litigation/Preservation Hold is issued, including a brief description of the final disposition.
· Notify OGC when a Litigation/Preservation Hold is released with a brief description of the final disposition;
· Maintain a log of all active Litigation/Preservation Holds.
3. Preserving and Holding Relevant ESI
The Office of Campus Counsel, with the assistance of Discovery team members, will provide guidance to campus units and those affected Information Custodians who receive a Litigation/Preservation Hold in:
· Ascertaining the location of relevant ESI;
· Determining the appropriate extent of preservation in light of the facts and circumstances;
· Taking reasonable steps to preserve relevant ESI, including the documentation of each step taken;
Note: Information must be preserved in its native format. If the information includes email, the decision to preserve the ESI must take into account privacy issues addressed under the University’s Electronic Communications policy.
· Storing ESI for preservation purposes in a secure area, so that a chain of custody may be documented, if necessary;
· Retaining an e-Discovery consultant / forensic expert for cases involving voluminous data and/or numerous Information Custodians.
Note: This determination is subject to available funding sources and involves consultation with OGC and the UC Office of Risk Services.
4. Assigning of Litigation Counsel
If the Office of Campus Counsel determines the need to assign litigation attorneys, then these individuals will manage the Discovery Process. If a Lawsuit or an Arbitration proceeding is anticipated or initiated, the University’s litigation attorneys, either OGC attorneys or outside counsel, will manage the Discovery Process, to include the review and production of ESI as part of the normal Discovery Process.
Note: These litigation attorneys may require technical assistance as well as declarations and/or court testimony from C&C representatives concerning the preservation effort.
V. Contacts
For comments or questions regarding this policy, members of the campus community are encouraged to call the campus manager for administrative policies at 2-8246 or send an email to UCRpolicy@ucr.edu. For comments or questions regarding Discovery compliance, members of the campus community are encouraged to contact the Office of Campus Counsel at 2-5983.
VI. Related Information
VII. Frequently Asked Questions
A. What does “Discovery” mean?
“Discovery” is the process by which relevant information is gathered by the parties in a Lawsuit or an Arbitration Proceeding. One of the ways a party to a Lawsuit or an Arbitration proceeding can obtain “Discovery” of relevant information is by asking other individuals or entities to produce documents. Federal and state courts have long recognized that the term “documents” includes electronic data and that electronic data are thus subject to the same Discovery rules as other evidence relevant to a lawsuit. Upon notice that a Lawsuit or an Arbitration Proceeding has been commenced, or if it is reasonably anticipated that a Lawsuit or an Arbitration Proceeding may be brought, the University and all of its faculty and staff members are under a Legal Duty to preserve all evidence, whether hard copy or electronic, that might be relevant to the Lawsuit or Arbitration Proceeding.
B. What data needs to be preserved?
The FRCP require a party to suspend routine or intentional purging, overwriting, re-using, deleting, or any other destruction of ESI relevant to a Lawsuit or an Arbitration Proceeding, wherever it is stored—at a University work station, on a laptop or cellular phone, at an employee’s home, on a social media site, etc. It includes all forms of electronic communications, e.g., email, word processing documents, calendars, voice messages, instant messages, spreadsheets, MS SharePoint files, Wiki materials, videos, or photographs. This ESI 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 (e.g., so-called “metadata”), is also available for inspection. In other words, it is not sufficient to make a hard copy of electronic records.
C. What will I have to do?
You will be notified of the duty to preserve ESI through a notice called a “Litigation/Preservation Hold.” You will then be asked to cooperate with the Office of Campus Counsel, the Office of Risk Management, and C&C personnel to ensure that all relevant ESI in your possession or under your control is identified and preserved. Until C&C personnel have taken steps to preserve your ESI, you should be particularly careful not to delete, destroy, purge, over-write, or otherwise modify existing ESI.
D. How long will this go on?
The Office of Campus Counsel will advise you when you and the University 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 or Arbitration Proceeding and all appeals have been concluded. When the duty to preserve evidence ends, the preserved data will be returned to you or destroyed, in accordance with University records retention schedules.
E. Do I need to also preserve data on my home computer?
Yes, if you use it for work. The same rules apply to any computer that stores information potentially relevant to a Lawsuit or an Arbitration Proceeding involving the University. Accordingly, if you use your home computer for University-related business (including email on your University email account or on a personal account), you must preserve the data on that computer or account.
F. 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 Lawsuit or Arbitration Proceeding (e.g., on your home computer correspondence entirely unrelated to University employees or University business, income tax returns, your music/video library, etc.). However, we often find that it is difficult at the beginning of a Lawsuit or an Arbitration Proceeding 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.
G. I previously deleted something that might be relevant—should I be concerned about that?
The duty to preserve information arises only when there is a reasonable anticipation of litigation. ESI deleted before that time, pursuant to retention policies, should not create a problem.
H. What if I am involved in an ongoing matter relating to the person who is suing the University?
You must also preserve any new ESI that is generated after receipt of a Litigation/ Preservation Hold that may be relevant to the Legal Dispute. For example, this may involve an employment claim by a current employee where relevant new documents may be created during the ongoing employment relationship.
I. Who is going to be paying for the cost of preserving electronic records?
Most external costs (such as IT consultants) associated with complying with the Discovery requirements will be handled in the same manner as other litigation expenses are presently handled. Internal costs (time spent by University staff members, applicable storage costs and the like) will be absorbed by the applicable campus unit.
J. Who will be looking at my University data?
This depends on the reason for the Litigation/Preservation Hold. If the matter involves a complaint or claim that requires investigation, appropriate University personnel from campus units such as the Office of Risk Management, Human Resources, Academic Personnel, Labor Relations, the Office of campus counsel, and perhaps other campus units may be reviewing your records in the course of the investigation. In other cases, it may be that no one will initially review your records until and if there is a Lawsuit or an Arbitration proceeding initiated with discovery requests made.
VIII. Revision History
This is a new policy. The policy and associated procedures will be reviewed, at a minimum every two years, by the CGC. The campus manager for administrative policies will update this policy and associated procedures to reflect changes to related policies or governing standards, regulations, laws, and other such guidance as often as required.