Records Retention & E-Discovery. Preserving Electronically Stored Information for Litigation

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1 Records Retention & E-Discovery Preserving Electronically Stored Information for Litigation

2 Introduction Increasingly, data is created, sent, received, and stored electronically. In fact, 89 billion business s are sent and received every day. Electronically stored information has unique characteristics that distinguish it from tangible data: Electronic data is easily stored and created It s difficult to destroy hitting delete isn t enough It presents candor issues informal s can reveal the author s impressions/opinions It allows for reliable metadata data about the data Ex: Time and date message was sent/received

3 What is electronically stored information and what must we do to with it? Photographs This is a small sample of different kinds of electronically stored information; if relevant to a filed or reasonably anticipated lawsuit, we must PROTECT them from being destroyed. Recordings Office Documents Tables and Charts s Calendars Text Messages

4 What precautions do we take to prevent the loss of records? 1) Records Management Plan: 2) Litigation Hold Procedures

5 When exactly is a lawsuit reasonably anticipated? The duty to preserve is triggered when a lawsuit is filed or reasonably anticipated. To determine whether a lawsuit is reasonably foreseeable, we may consider a number of factors including: Filed complaints Significant incidents resulting in injury Major disputes Employee Statements Experience and Common Sense

6 What happens when a lawsuit is filed or reasonably anticipated? 1) Litigation holds are placed 2) People receiving litigation holds are informed of their duties

7 Litigation Holds - Introduction A litigation hold notice directs you to: Identify and locate records pertaining to the issue Stop routine destruction of these records A litigation hold usually includes: General description of the claims made or anticipated Types of information to be preserved Definition of what constitutes a document Direction to preserve relevant electronic and other documents General information on how to preserve documents Contact information for more information

8 What to do if you receive a litigation hold 1. Stop routine destruction of records 2. Preserve records in their original form 3. Preserve new records created or received after litigation hold 4. If instructed, make copies for those managing the case but DO NOT destroy the original 5. Consult designated contact person and don t hesitate to ask questions

9 How long should we retain records? Hold the records until you receive notice that the matter has been resolved; at that time, the records must be held as directed by the records retention schedule. Texas establishes mandatory minimum retention periods for records of public school districts. You can find the schedule here: Records Retention Schedule

10 Retention You are responsible for maintaining the s that you create or receive from outside sources. You must maintain these records in the same manner you would if they were in hardcopy format. You are responsible for knowing the District s record retention schedule. You may be responsible for allowing records to be destroyed before their scheduled destruction date. You should devote time for maintenance.

11 Retention To keep or to delete? When in doubt, KEEP. Examples of s that could be considered a public record and should be archived include: policies directives correspondence related to official business meeting agendas or minutes official reports information that has legal or historic value Many s that are sent and received have limited or short term value and should be deleted when their administrative usefulness has ended, but it will always depend on the content: meeting requests appointments general announcements advertising junk mail personal

12 Retention Importance of Archiving containing information of lasting value should be retained. Lasting value content includes s containing information that is: related to legal requirements, fiscal reporting, and audits have historical value are vital to operational continuity in case of disruption or disaster Determine what may be needed in the future related to your supervisory role at the campus.

13 Retention Retaining & Archiving The Technology Division automatically purges from the server after 180 days. All users should review s (both received and sent) at least weekly. Those that need to be retained should be archived within the 180 day period. Options for Saving Messages in GroupWise this handout give step by step directions for: archiving printing a paper copy saving as a word document selecting folder for saving files messages using this process can be copied to a CD

14 Responsible Use Policy (RUP) The RUP describes the intent and purpose of the network (including ) and the responsibilities of Humble employees. It is important that the RUP be reviewed and signed by employees annually. Use of GroupWise is it educationally relevant?

15 E-Discovery Discovery is the gathering of relevant information by parties in a lawsuit. Parties may conduct discovery by asking others to produce documents, including electronic data. Humble ISD has a legal duty to preserve all electronic records and turn them over as required; failing to meet this duty can expose the District to sanctions or liability. Employees of the District may have a separate duty to preserve data according to the records retention schedule.

16 How does e-discovery work? Requesting Party Specifically requests production and specifies the form in which the data is to be produced (TRCP 196.4) Responding Party 1. Produce data that is: a. responsive to the request AND b. reasonably available 2. If responding party CANNOT reasonably retrieve the data or produce it in the form requested, the responding party must state an objection. (TRCP 193) If the court orders production Requesting Party Will be ordered to pay reasonable expenses of the extraordinary steps necessary to retrieve the requested information (TRCP 196.4)

17 Sources Guidelines for Electronic Discovery at the University of Washington See attachments for sample litigation hold notices and preservation plans E-Discovery: Fighting over smoking gun s The nightmare begins Texas Association of School Boards: Records Management