Preservation of Digital Materials
When a lawsuit is filed – or reasonably anticipated – the University has a duty to take specific measures to prevent the loss or alteration of potentially-relevant electronic data. These measures include:
- identifying all materials relevant to the matter;
- identifying the custodians (individuals and offices) of those materials;
- identifying the media and methods by which those materials are stored;
- suspending any regular deletion processes relevant to those materials;
- preventing alteration of the contents or metadata of those materials;
- securing those materials against unauthorized access and accidental loss.
Specific measures for preserving digital materials depend on the nature of the storage media (i.e., desktop computers, mobile devices, cloud services, etc.) and must be determined on a case by case basis by Computer & Information Systems (CIS) staff in consultation with legal counsel and data custodians.
Some digital materials will be preserved by CIS staff. The preservation of other materials are the responsibility of individuals or administrative offices. Discussion of materials that fall into each of these categories is provided below
Collection of digital materials
In the event that a case proceeds to litigation, it may be necessary to collect and turn over preserved electronic and paper records. However, such a requirement will come weeks or months after preservation has occurred. When the University receives a request from opposing counsel to turn over electronic and paper records, University counsel will determine the best approach to achieve a complete and accurate response.
Steps to be taken by the Vice President of Financial and Business Affairs
The Vice President Office is responsible for overseeing all measures related to eDiscovery. When legal action is initiated or reasonably anticipated, the Vice President, in consultation with legal counsel, will:
- determine the parameters (timeframe and data categories) of digital materials subject to preservation;
- work with CIS to identify the offices and individuals responsible for preserving these materials;
- identify a point person in each office to serve as contact for the matter;
- issue a preservation notice to individuals and/or offices with a list of materials to be preserved;
- record compliance with the preservation notice, noting any problems.
Steps to be taken by Computer and Information Systems
When the Vice President notifies the AVP for Information Technology / CIO of litigation or anticipated litigation, the AVP for Information Technology / CIO and relevant CIS staff will:
- review the parameters (timeframe and data categories) of digital materials subject to preservation;
- work with the Vice President for Business and Financial Affairs to identify the offices and individuals responsible for preserving these materials;
- identify the means and media (hardware, software, online services) by which these materials are stored;
- determine the list of materials to be preserved by CIS and the list of materials to be preserved by individuals and administrative offices;
- immediately halt any deletion processes of systems controlled by CIS that could affect relevant materials;
- assist individuals and administrative offices with preservation processes;
- record and report preservation compliance to the Vice President for Business and Financial Affairs.
Steps to be taken by Preservation Notice Recipients
Receipt of a preservation notice does not necessarily mean the recipient is directly involved in the matter. Rather, it means the evidence which the University is obliged to preserve may be in the person’s possession or scope of responsibility and that the person, as an employee of the University, has a duty to preserve such information, effective immediately. When an individual or an administrative office receives a preservation notice letter from the Vice President for Business and Financial Affairs, it is necessary to:
- review the letter and the list of preservation materials to confirm that the digital materials are within one’s purview (and identify any materials that are not);
- immediately halt any standard deletion processes that could affect items in the preservation list (consulting with CIS for assistance as needed);
- take appropriate steps to preserve the specified digital materials without altering them in any way (consulting with CIS for assistance as needed);
- notify CIS of any potentially relevant digital materials stored on personally owned devices or personal cloud service accounts;
- remit copies of any specified digital materials being preserved on personally owned devices or personal cloud services to the University;
- preserve any paper copies of relevant materials; regardless of whether or not they are also in digital form and if these paper materials are not currently contained within a records repository managed by the University, they must be turned over to the University for the duration of the hold, to be returned when the hold is lifted;
- preserve any new digital materials that are generated or received after receipt of the preservation notice that may be relevant to the case;
- report preservation compliance status to the Vice President for Business and Financial Affairs’s Office using the form enclosed with the Preservation Notice..
Ending Preservation Responsibilities
When the litigation or the threat of litigation has ended, the Vice President for Business and Financial Affairs will inform those who received the preservation notice that they are no longer under any special obligations to preserve the identified materials. At that point, the University’s normal retention and deletion schedules will apply to those materials unless otherwise directed. Personal materials (papers and removable media) collected during the preservation notice period that fall outside the University’s records management purview will be returned to the individual. Copies of digital materials collected from individuals during the preservation notice period will be destroyed.
Division of Preservation Responsibility Between CIS and Departments
When a preservation notice is issued, some categories of materials will be preserved by CIS staff, some categories by individuals and/or administrative offices, and some will need to be decided on an ad hoc basis by consultation between CIS and individuals or administrative offices.
Digital materials sources for which CIS staff are responsible include:
- System Backups
- O365 Apps: Email, OneDrive, and Sharepoint
- Employee and Departmental file shares
Digital materials sources that may fall either to individuals, offices, or CIS staff, depending upon circumstances, include:
- Raiser's Edge
- Slate CRM
Digital materials sources that fall to individuals or offices:
Preservation of digital records in all other secondary or non-CIS managed data systems are the responsibility of the department head stewarding the campus resource.
Personally Owned Devices or Cloud Services
University employees should conduct University business using only those technology resources (hardware, software, and online services) provided by the University.
If a personally owned device or personal cloud service is used to store digital materials potentially relevant to a case, the employee may be asked to provide the University or its legal counsel with access to those materials. Should the employee choose to deny access: (a) a subpoena may be issued directly to the employee to obtain those materials; (b) the University may not be able to include the employee within the scope of its legal defense; and (c) the employee may therefore need to retain separate legal counsel.
During the preservation process, individuals will have the opportunity to indicate whether or not potentially relevant digital materials are stored on personally owned devices or personal cloud services and if they are willing to grant the University access to such materials.
Frequently Asked Questions
What do “electronic discovery” and “records preservation” mean?
“Discovery” is the process by which relevant information is gathered by the parties in a lawsuit. One of the ways a party to a lawsuit 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 digital materials and that digital materials are thus subject to the same discovery rules as other evidence relevant to a lawsuit. The issue has received substantial national attention, however, because of a series of court rulings resulting in the imposition of huge sanctions on parties for their failure to preserve digital materials and because of amendments to the Federal Rules of Civil Procedure that took effect on December 1, 2006. Upon notice that a lawsuit has been commenced against the University (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 University and all of its faculty, staff members, and agents are under a legal duty to preserve all evidence, whether hard copy or electronic, that might be relevant to the dispute.
What digital materials need to be preserved?
Federal and state rules require a party to suspend routine or intentional purging, overwriting, reusing, deleting, or any other destruction of digital materials relevant to a lawsuit or anticipated litigation, wherever they are stored – on University computers, laptops, cell phones or other mobile device, in the cloud, or at an employee’s home. It includes all forms of electronic communications, e.g., email, word processing documents, calendars, voice messages, text messages, spreadsheets, videos or photographs. 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 always sufficient to make a hard copy of electronic communication.
What will I have to do?
You will be notified of the duty to preserve digital and paper records through a communication called a preservation notice. You will then be asked to cooperate with University counsel, the AVP for Information Technology / CIO, CIS staff, the Human Resources Office, or others to ensure that we identify and preserve all potential sources of relevant materials in your possession or under your control. You may be asked to complete and return a questionnaire identifying all potential sources of digital and paper materials. If so, it is critical that you complete and return the questionnaire without delay. You may also be asked to complete a signed statement confirming that you have completed the required search and retention as requested. Until CIS staff have taken steps to preserve your digital materials, you should be particularly careful not to delete, destroy, purge, overwrite, or otherwise modify existing materials.
Litigation: Actual or “Reasonably Anticipated”
The obligation to preserve digital materials 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 “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 by University legal counsel. The mere possibility of litigation does not necessarily mean it should be “reasonably anticipated.” Rather, a duty to preserve is triggered only when credible facts and circumstances indicate that a specific, predictable, and identifiable instance of litigation is likely.
How long will this go on?
The Vice President for Business and Financial Affairs or AVP for Information Technology / CIO will advise you when you are no longer obligated to retain the preserved digital materials. When the duty to preserve evidence ends, the preserved digital materials will be returned to you or destroyed. If at any time you question whether to continue retaining the records, you need to contact the appropriate contact person listed in the preservation notice before destroying or altering any documents.
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 matter involving the University. Thus, if you use a personally owned computer or personal online service account for University-related business you must preserve relevant digital materials stored in those media.
Can I take personal or sensitive material that isn’t relevant to the case off my computer?
You may remove digital materials from your computer (or segregate it from digital materials that will be preserved) if you are absolutely certain that it is unrelated to the claim (e.g., correspondence entirely unrelated to University employees or University business, such as personal income tax returns, your music library, etc.). However, 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 undertake wholesale deletion of digital materials. You may be questioned under oath at a later date by an attorney representing the opposing party about what digital materials you may have destroyed.
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. Digital materials deleted before that time pursuant to retention policies, should not create a problem. In some instances, deleted digital materials may be retrieved through archiving systems or other forensic means.
What if I am involved in an ongoing matter relating to the person who is suing the University?
You must preserve any new electronic or paper information generated after receipt of a preservation notice that may be relevant to the case.
Who will be looking at my University data?
This depends on the reason for the preservation notice. If the matter involves a complaint or claim that requires investigation, University counsel and appropriate University staff from Human Resources and perhaps other offices 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 unless there is a lawsuit filed with discovery requests made.
Who decides what data will be turned over to the opposing party?
The University, as owner of the data, will make these decisions based on advice from its attorneys. Before any materials are turned over to the opposing party, the University’s attorneys will review them for relevance and confirm they are not otherwise protected or privileged. In some instances, a Court may order the parties to produce records even if they are protected in some way.
What if I don’t want to disclose my University data?
The University and its employees have a legal duty to preserve, and subject to the rules governing discovery, turn over electronically stored information as well as paper records. In short, the law does not offer us a choice and it is an expectation of your employment or association with the University to comply. Failure to abide by the law may result in judicially imposed monetary (or other) sanctions against the University and/or you individually. 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.
What about student employees or students who serve on bodies such as the Judicial Board (J-Board)?
Student employees and students acting on behalf of the University in roles such as J-Board membership are subject to the same eDiscovery rules as faculty, staff, or other University employees. Special email accounts and data repositories have been established for all Adjudication Boards and should at be used exclusively to conduct the business of those groups.
What if I have additional questions?
Consult with the Vice President and Treasurer’s Office, the AVP for Information Technology / CIO, or others as directed by the Vice President and Treasurer.