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Office of General Counsel Policies & Guidelines

Litigation Hold Notice : G-075

Policy/Guideline Area

General Guidelines

Applicable Divisions

TCATs, Community Colleges, Universities, System Office, Board Members

Purpose

This guideline is issued to aid Tennessee Board of Regents (“TBR”) System in the implementation of a Litigation Hold Notice Procedure to comply with the Federal Rules of Civil Procedure provisions regarding preservation of Electronically Stored Information.

Definitions

  • Electronically Stored Information (“ESI”) - refers to all forms of electronic data and documents including, but not limited to, metadata, electronic mail, word processing documents, calendars, voice messages, videos, digital photographs, information in personal digital assistants (PDA) in any location where data may be stored.
  • Litigation Hold Procedure – is a process whereby an institution, when sued in federal court or when reasonably anticipating federal litigation, issues a litigation hold notice communication suspending the normal operation of paper and electronic document destruction policies for particular records that are relevant to the federal litigation.
  • Litigation Hold Notice Letter – is the communication that is distributed to preserve information and prevent or suspend destruction of paper documents and electronic data that must be retained during a litigation hold (attached as Exhibit 1). 
  • Records Coordinator - refers to the individual at an institution who has been appointed by the President or Director to serve as the institution’s Records Coordinator / Official. The Records Coordinator has the authority and responsibility to dispose of paper and electronic documents in accordance with approved records disposition authorizations under TBR Guideline G-070, Disposal of Records. Prior to the destruction of any records, the Records Coordinator must determine if the action should be delayed due to audit or federal litigation hold requirements.
  • Evidence - refers to  hard copy and electronic / digital recordings, videotapes, writings, material objects, photographs, drawings, diagrams, testimony, or other things presented to the senses that  are offered to prove the existence or nonexistence of a fact.

Policy/Guideline

  1. Introduction
    1. Federal law requires parties to a lawsuit pending in federal court to preserve electronic data and documents pertaining to the lawsuit in conformance with the Federal Rules of Civil Procedure. There is a legal duty to preserve evidence (e.g., documents and things), including electronic documents, when the institution has notice that the evidence is relevant to pending federal litigation.
    2. This guideline explains that TBR Institutions must develop a comprehensive written Federal Litigation Hold Notice Procedure (“Litigation Hold Procedure”) to retain Electronically Stored Evidence (“ESI”) evidence that is relevant to a federal lawsuit as required by the Federal Rules of Civil Procedure.
      1. An institution’s Litigation Hold Procedure must include the components described in this guideline pursuant to which the institution intends to preserve and retain all evidence, including ESI that is relevant to pending federal litigation in order to avoid penalties for non-compliance with the Federal Rules of Civil Procedure.
    3. The penalties for non-compliance with the federal law regarding electronic evidence retention in federal litigation are severe and potentially costly. The consequences for an institution could include, but are not limited to:
      1. Monetary sanctions;
      2. Payment of the opposing party’s attorneys’ fees and costs;
      3. Preclusion of the institution’s evidence at trial;
      4. Dismissal of the institution’s claims and counterclaims; and
      5. Default judgments against the institution.
    4. Each institution is solely responsible for payment of any monetary sanctions issued by the court resulting from the institution’s non-compliance with electronic record retention requirements as required by federal law hence the importance of an institutional litigation hold procedure.
  2. Litigation Hold Application
    1. The Litigation Hold Procedure shall apply to any evidence, paper or electronic documents and data or things, maintained by an institution that is relevant to a federal lawsuit.
      1. Such evidence shall be preserved and retained by the institution pursuant to the provisions of the Litigation Hold Notice until the conclusion of both the litigation and the requisite time period after the litigation as outlined in TBR Guideline G-070, Disposal of Records.
      2. Notwithstanding the records retention and disposition schedule outlined in TBR Guideline G-070, Disposal of Records, upon issuance of a Litigation Hold Notice, institutions must suspend routine purging, overwriting, re-using, deleting, or any other destruction of electronic information relevant to a federal law dispute, including electronic information wherever it is stored.
      3. This includes, but is not limited to, electronic information at an institution work station, on a laptop, in a personal digital assistant, on a CD-rom, at an employee’s home, etc.
      4. The retention requirement includes all forms of attorney-client privileged and non-attorney-client privileged electronic documents.
        1. In the context of federal litigation, although all information must be preserved, no data will be disclosed to the opposing party without first being reviewed to determine legal necessity, relevance, and privilege.
        2. Privileged documents (e.g., attorney-client communications) will not be disclosed to the opposing party.
    2. The same preservation requirement exists for paper documents such that institutions must suspend routine or intentional destruction of paper documents that are relevant evidence in a federal lawsuit as outlined in a Litigation Hold Notice.
  3. Purpose of a Litigation Hold Notice
    1. There will be instances in which an institution must implement a Litigation Hold Notice that requires the retention of certain paper and electronic records for an indefinite period of time due to pending federal litigation.
    2. A Litigation Hold Procedure is the process whereby an institution, when sued in federal court, sends a Litigation Hold Notice suspending the normal operation of document destruction policies for particular records that are relevant to the federal litigation.
    3. Notwithstanding the applicable records retention schedule, documents that are subject to a particular Litigation Hold Notice must be retained until the hold is removed.
    4. The Records Coordinator, or a designee, at an institution is responsible for implementing the Litigation Hold Procedure upon notice of the need for a Litigation Hold Notice to preserve relevant ESI and paper documents.
    5. Identifying instances in which a Litigation Hold Notice is required and its subsequent implementation requires collaboration of multiple individuals at the institution, including the institution’s Legal Counsel.
    6. The Litigation Hold Notice Procedure that results in the issuance of a Litigation Hold Notice Letter is outlined in this section. The implementation of an institutional Litigation Hold Notice requires adherence to the procedure outlined in this guideline or an alternative process established at an institution that includes the components of the procedure outlined in this guideline.
  4. Institution’s Notification of Federal Litigation
    1. Responsible Party: All Employees
      1. All employees have an affirmative duty to inform the institution’s Records Coordinator when they receive official notification of federal litigation against the institution.
    2. Official Notice Federal Litigation
      1. Employees are considered to be in receipt of official notice of federal litigation when they receive a complaint, summons, and/or other official documents related to a federal lawsuit.
    3. Employee’s Notification of Federal Litigation to Records Coordinator
      1. Responsible Party: All Employees
        1. Based on the factors outlined in Section IV. B. of this guideline, employees who have official notice of federal litigation against the institution must inform the institution’s Records Coordinator, in writing, of the matter within two (2) business days of their receipt of notification.
    4. Records Coordinator’s Issuance of Litigation Hold Notice Letter
      1. Responsible Party: Records Coordinator
        1. In consultation with and under the direction of Legal Counsel, the institution’s Records Coordinator, or designee, will issue an Official Litigation Hold Notice Letter regarding the matter to the appropriate individuals within five (5) business days of receipt of notification of pending federal litigation.
        2. The Litigation Hold Notice Letter must state the categories of electronic and paper documents, including ESI, that must be retained until further notice and that electronic 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.
          1. It is not sufficient to retain only a paper copy of ESI. A Model Litigation Hold Notice Letter is attached to this guideline as Exhibit 1.
          2. Institutions must consult with Legal Counsel prior to issuing a Litigation Hold Notice Letter.
    5. Employees’ Compliance with the Litigation Hold Notice Letter
      1. Responsible Party: Employee recipients of the litigation hold notice
        1. In response to an official Litigation Hold Notice Letter issued by the institution’s Records Coordinator, or designee, all individuals who receive the notice must compile paper and electronic documents and data (including e-mails, voicemails, videos, etc.) as instructed in the notice letter.
        2. Electronic records must be retained in the original electronic format (e.g., burned to disk / CD, saved in a secure folder on the system server that is not subjected to unannounced deletion, etc.).
        3. It is not sufficient to print paper copies of electronic records as they must be maintained in their original electronic format.
        4. It is the responsibility of individuals to whom the litigation hold notice is issued to retain all records that are responsive to the notice until they receive written notification indicating otherwise.
  5. Assessment of the Litigations Hold Notice
    1. The Records Coordinator, in conjunction with the appropriate administrators and Legal Counsel, shall assess the effectiveness of the institution’s Litigation Hold Notice Procedure on a periodic basis, as deemed necessary by the institution.
    2. The Records Coordinator shall make certain that necessary revisions to the Litigation Hold Notice Procedure are made at the time of the review to address any changes in the institutional organization that may affect the implementation and effectiveness of the Procedure.
  6. Publication of the Litigation Hold Notice Procedure
    1. To promote uniform compliance with the Litigation Hold Procedures by all personnel employed by an institution and to achieve TBR institutions’ duty to preserve and retain relevant paper and electronic evidence in federal litigation, institutions shall, at a minimum, display and distribute its Litigation Hold Notice Procedure, or this Guideline in the absence of an institutional Procedure in accordance with the standard distribution methods.
    2. The institution’s current Litigation Hold Notice Procedure or, in the absence of an institutional procedure, this Guideline, shall be available upon request for review and copy at all times during normal business hours. 

Exhibits

Sources

Source: Approved at Presidents Meeting, November 6, 2007.

Related Policies

Contact

Mickey Sheen
615-366-4437
mickey.sheen@tbr.edu