Be Prepared for E-Discovery

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1 Reference Materials Be Prepared for E-Discovery United Educators Roundtable Wednesday, June 9, :00 p.m. Eastern Time 1

2 Reference Materials Contents Speaker Biographies 3 Roundtable Agenda 4 Pilot Testing Case Studies 5 Sample Record Retention Schedule 6 Sample ESI Content Maps 7 E-Discovery Toolkit 10 Additional Resources 21 2

3 Reference Materials Speaker Biographies Jean Madden-Hennessey is the Director of Information Technology/Chief Information Officer for Saint Joseph College in Connecticut. She is responsible for the college s central IT operation and has been the point person for the college s records retention policy and the e-discovery pilot project. Before coming to St. Joseph, Madden-Hennessey worked in IT in the insurance and social services industries. She received her undergraduate degree from Central Connecticut State University and an MBA from the University of Hartford. Robb Jones is UE s senior vice president and general counsel for claims management. He has spoken to many groups on the topic of e-discovery and his writings on the topic have been used by the National Association of College and University Attorneys to introduce e-discovery issues to attorneys who are new to higher education. Prior to joining United Educators, he served as director of the Judicial Education Division of the Federal Judicial Center, and as administrative assistant to Chief Justice William Rehnquist at the U.S. Supreme Court. Before that time, he was a litigation partner in the Washington office of Nixon Hargrave Devans & Doyle (now Nixon Peabody). Jones received his undergraduate degree from Grove City College and graduate and law degrees from the University of Virginia. John Wiltse is Senior Associate General Counsel at the University of Nebraska Central Administration, which oversees the four campuses in the University of Nebraska System. Wiltse has served almost 30 years as in-house counsel to the university and was responsible for coordinating the e-discovery pilot project. Wiltse obtained his undergraduate degree, a masters degree, and a law degree from the University of Nebraska- Lincoln. Frank Vinik (moderator) is Director, Risk Management at United Educators. Prior to joining UE, he practiced education and employment law in the Charlotte office of Smith Helms Mullis & Moore (now McGuire Woods) and served in the administration of the University of California at Berkeley. He received his undergraduate degree from the University of California at Berkeley and his law degree from the University of Virginia. 3

4 Reference Materials Roundtable Agenda Goals of program The current e-discovery landscape Overview of UE pilot program Listener questions and comments Preserving data in litigation holds ESI content maps IT challenges Listener questions and comments Lessons learned from the pilot project Readiness steps for your campus Listener questions and comments 4

5 Reference Materials Hypothetical Case Studies Used for Pilot Testing Saint Joseph College The parents of Stephanie J. filed suit against Saint Joseph College alleging that it was negligent in failing to detect that their 17 year old daughter was depressed and should be held responsible for the physical and mental injuries she sustained when she attempted suicide on campus. They contend that Stephanie s English professor expressed concern to Stephanie s faculty advisor that Stephanie was writing papers questioning the value of human life. In addition, they allege that Stephanie s roommate notified a resident assistant that she thought Stephanie was depressed. The resident assistant then consulted with a residence hall administrator on the issue. The parents contend that the college failed to put together the pieces and notify them in time to intervene. The parents attorney has indicated that he would like to discover all electronic messages and communications relating to the college s notice of Stephanie s condition and its failure to act. In addition, he would like all messages, redacted if necessary, relating to any other students within the past five years who indicated signs of serious mental distress or attempted suicide while at the college. University of Nebraska-Lincoln Professor Jane Doe filed suit alleging she was denied tenure by the University of Nebraska-Lincoln (UNL) Department of Chemistry (the department) because of her gender. In her third year as an assistant professor, Dr. Doe filed a complaint with the UNL Office of Equity, Access and Diversity Programs alleging that the department was an old boys network unwilling to provide her with support and mentoring. In Professor Doe s sixth year, the tenured department faculty voted 11 to 4 to deny tenure. All of those voting against Professor Doe were men. The one tenured woman in the department voted to grant tenure. The department chair votes separately. The male department chair, who is also tenured, voted to grant tenure. The College of Arts and Sciences Executive Committee voted six to four against tenure. All four men on that committee voted against tenure. The male dean of the college decided against recommending Professor Doe for tenure. A female Associate Vice Chancellor for Academic Affairs and female Dean of Graduate Studies reviewed Professor Doe s dossier. Under university policy, they make tenure recommendation to the Senior Vice Chancellor for Academic Affairs. One recommended tenure, the other did not. The Senior Vice Chancellor for Academic Affairs, a woman, recommended that tenure be denied to UNL s Chancellor, a man, who upheld the original departmental decision to deny tenure. Professor Doe s attorney would like to obtain electronic documents, s, and any other electronic information pertaining to Doe from every person involved in the Doe tenure decision. Doe s attorney would also like the same electronic records for all other tenure candidates in the chemistry department over the past 10 years. In addition, the attorney would like all electronic records and documents relating to her complaint to the UNL Office of Equity, Access and Diversity Programs. Furthermore, the attorney would like all electronic records and documents from any other complaints received by that office in the last 10 years by female faculty alleging sex discrimination. 5

6 Reference Materials Sample Record Retention Schedule University of Nebraska Accounting Records Retention and Disposition Schedule Count of Documents Group Category Sub-Category. Document Retention 1 Accounting General Ledger Interface NIS Accounting Feed Data Files C + 1 year 2 Accounting Accounts Payable Vendor Information Form W-9 Request for Taxpayer Identification and Certification 3 Accounting Fixed Assets Inventory Buildings and equipment documentation 1 year after vendor removed from file 1 year after disposal of assets 4 Accounting General Ledger Capital Assets Bank statements -trustee 1 year after bonds retired 5 Accounting General Ledger Capital Assets Plant project files 1 year after disposal of assets 6 Accounting Travel Arrangements Trip Authorization C + 2 years 7 Accounting Fixed Assets Inventory Asset additions to buildings and equipment, screening records C + 2 years 8 Accounting General Ledger Reports DAS encumbrance certification C + 2 bienniums 9 Accounting General Contracts Contracts/Leases E + 2 yrs 10 Accounting General Contracts Maintenance Agreements E+2yrs 11 Accounting General Ledger Reports Monthly Ledgers -paper copy C + 5 years 12 Accounting Accounts Payable Invoices Inter-Agency Billing Transaction (IBT) C + 7 years 13 Accounting Accounts Payable Invoices Non-Travel Employee Reimbursement C + 7 years 14 Accounting Accounts Payable Invoices Procurement Card Receipts and Vouchers C + 7 years 15 Accounting Accounts Payable Invoices Quick Order/Quick Pay C + 7 years 16 Accounting Accounts Payable Invoices Vendor Invoices C + 7 years 17 Accounting Accounts Payable Invoices Visiting Personnel Expense Voucher C + 7 years 18 Accounting Accounts Payable Invoices Warrant Request C + 7 years 19 Accounting Accounts Receivable 20 Accounting Accounts Receivable Receipts Interdepartmental Charges Workstudy offcampus billings Accounts Receivable Billing Invoice, including Foundation C + 7 years C + 7 years 21 Accounting Accounts Receivable Receipts Bursar Banking Documents C + 7 years 22 Accounting Accounts Receivable Receipts Bursar Remittance Advice and Attachments C + 7 years 23 Accounting Accounts Receivable Receipts Cash Register Tape Departmental C + 7 years 24 Accounting General Ledger Interdepartmental Charges Interdepartmental Billings and Department s Journal Entries C + 7 years Legend: C =Current; E =Expiration 6

7 Reference Materials Sample ESI Content Maps Infrastructure Drawing of Location of Physical Equipment (Server Rack 5) 7

8 Reference Materials Saint Joseph College Application & Associate Data Location Name of Applications - short description Name of SJC Server Backup Tapes Ad Astra & Ad Astra web classroom & events scheduling Exxx2 x All Star Stellent Document Imaging (transcripts) Sxxxxt x Name of Hosting Vendor Local Hard Drives Blackboard Classroom Management CTDLC CashNet pay online Cashnet Ceridian HR/Payroll system Ceridian Embark Art Gallery Software Exxx2 x x InfoMaker Report Writer Txxxx x Jenzabar EX Student Admin Sxxxxxx05 x Jenzabar JICS SJC Portal Sxxxxxx05, SxxxxxS x OmniAlert SJC Alert Text Messaging OmniAlert OmniUpdate Web site Sxxxxxx1 x OmniUpdate PowerFaids Financial Aid x x Raiser s Edge Institutional Advancement x x Taskstream Eportfolio x Trackit IT Helpdesk Exxx2 x Twin Oaks Athletic membership Exxx2 x University Tickets Hoffman Tickets University Tickets ActiveDirectory Network Permissions Sxxxxx2 Microsoft Office SxxxxS x x Sxxxxxxe x x *This document serves as a consolidated listing of supported applications and its related electronic location * This document should be used in conjunction with individual server inventory listings 8

9 Reference Materials Sample Server Inventory with Listing of Drive Content Sxxxxxx05 Creation Date: December 15, 2009 Revision Date: Description: Level 1 Server Sxxxxxx05 hosts all data for the Jenzabar EX system in a MS SQL format. System Architecture: Processor: Memory: 2 duo core 2.33 GHZ 8.00 GHZ Disk Partition Partition size Description 0 C:\ GB Holds the Operating System 0 D:\ GB Holds Applications and Application data 0 G:\ GB Holds the Jenzabar Database 2 E:\ 150 GB Holds Jenzabar and MySJC Databases 3 H:\ GB Maintenance: Contact Dell Tech support Sxxxxxx05 Tag number 9

10 E-Discovery Toolkit for Educational Institutions The e-discovery process the search of electronic records for use as legal evidence can cost educational institutions thousands of dollars and hours. The increased use of electronic communication means that your institution needs to be prepared in the event that e-discovery becomes part of a lawsuit. This toolkit, developed by AdamsGrayson, an e-discovery consulting firm, and United Educators, is designed to guide member institutions through the e-discovery process. The kit includes: 1. Guide to Preserving Data for E-Discovery An institution must preserve relevant documents, s, and records upon receiving notice of a lawsuit or events that are likely to trigger litigation. This guide provides a roadmap for: Deciding when document preservation is necessary Determining the scope of preservation Implementing preservation Defining ongoing responsibilities during litigation 2. Sample Preservation Directive This template for institutions needing to issue a preservation directive can be tailored to fit an institution s structure and the nature of the triggering event. In most situations, legal counsel for the institution should review preservation directives before they are issued. 3. Script and Checklist for Data Custodian Interviews Data custodians are individuals who may possess records or documents that need to be preserved. This sample script and checklist provides guidance for information technology (IT) professionals who interview data custodians to locate records within the scope of a preservation directive. 4. Sample Data Tracking Charts Institutions collecting data in response to an e-discovery preservation directive need a way to track the data as it is searched and culled by attorneys and e-discovery vendors. These tracking charts document the chain of custody and ensure data is not lost in the review process.

11 11 E-Discovery Toolkit Guide to Preserving Data for E-Discovery 1. GUIDE TO PRESERVING DATA FOR E-DISCOVERY As soon as an institution receives notification of a lawsuit or at the time it reasonably anticipates potential involvement in a legal matter, the institution must decide whether it needs to preserve documents and data. This toolkit resource explains how to decide what to preserve and how to ensure compliance. DECIDING WHETHER TO PRESERVE The institution should designate a team of key personnel (commonly called the eteam ) to make preservation decisions when an actual or potential legal matter arises. The first step is to determine the initial scope of the pending legal matter and decide whether there is an obligation to preserve potentially relevant evidence. The following is a list of potential triggers of a preservation obligation: An actual or potential legal filing: The filing of a complaint against the institution or any of its employees, the serving of a summons, or the filing of an administrative notice automatically triggers a preservation obligation. Notice of a credible threat of a legal filing or litigation event: Credible threats could include a letter from an attorney indicating that legal action is imminent, notice that an official administrative filing is forthcoming, or any other communication that formally discusses the possibility of a specific legal filing or litigation event. Internal institutional events: These events include but are not limited to grievances or complaints alleging harassment or discrimination, hearings involving academic freedom or tenure, allegations of professional misconduct, or student disciplinary hearings. By weighing the costs of potential litigation against the cost of electronic discovery, the institution may decide to preserve all relevant data, to preserve reasonably accessible relevant data, or to forgo preservation altogether. In making this decision, keep in mind that failure to preserve potentially relevant data and documents could severely compromise the institution s legal position and result in court-issued sanctions and penalties.

12 12 E-Discovery Toolkit Guide to Preserving Data for E-Discovery IDENTIFYING RELEVANT DATA If the institution determines that data relating to a certain matter should be preserved, it should next identify the departments, employees, and other sources of data that are or could be affected. Since there are risks in failing to preserve and collect all potentially relevant data at the outset of a legal matter, it is advisable to make the preservation list overly inclusive. The preservation order can always be pared down to exclude people and sources who are not necessary to the investigation. To decide the proper scope of the preservation effort, the institution should use the following lists to closely examine anything that could be potentially relevant. Where are the relevant people? 1. In specific departments 2. In administrative offices 3. Among academic administrators 4. On the faculty 5. On staff 6. Among the trustees 7. Among former employees or trustees What are the relevant sources? 1. Paper files 2. Desk drawers 3. Shared file cabinets 4. Personal file cabinets 5. Department file cabinets 6. Off-site storage 7. Files from home office 8. Electronic files 9. Hard drives 10. Shared network drives 11. Backup tapes/drives/servers 12. External storage media (diskettes, CDs, DVDs, thumb drives) 13. servers 14. Personal computers 15. PDAs, Blackberries 16. Voic /instant messaging 17. Audio/video tapes 18. Photographs/digital images 19. Internal, external websites including social networking sites The eteam, possibly with assistance from outside counsel, should work with administrative, IT, and records management personnel to build a complete list of all people and data locations that fall within the preservation obligation.

13 13 E-Discovery Toolkit Guide to Preserving Data for E-Discovery ISSUING A PRESERVATION DIRECTIVE Legal counsel or a member of the eteam should issue a preservation directive (sometimes called a litigation hold notice) to all identified individuals who may hold records relevant to the legal matter. The Sample Preservation Directive included in this toolkit can serve as a good starting point. At a minimum, the directive should: Inform the recipients of the institution s preservation obligations Identify, at the institution s discretion, the specific matter raising the duty Instruct recipients to think carefully about the manner in which their documents and data are created, maintained, stored, and accessed Require recipients to retain all potentially relevant records that are reasonably accessible Warn that noncompliance or lack of cooperation with individuals implementing the preservation directive is a serious offense that could lead to discipline up to termination Provide information on whom to contact if the recipient has questions or needs assistance The preservation directive should be sent by hard copy and with a request that each recipient sign and return it to the party issuing it. When senders deliver the directives by , they should activate the tool that automatically confirms an was delivered or read. In addition, a copy of each preservation directive should also be sent to the designated staff member in IT who will be assisting with the implementation of the directive. IT RESPONSIBILITIES Upon receipt of a preservation directive, IT should stop its normal backup tape rotation, protect all backup tapes, and secure specific shared drives and data archives. In addition, IT should turn off any automatic deletions of s and voice mails that may destroy or delete relevant information. IT personnel must interview each preservation directive recipient to gain additional information about potentially relevant data and to arrange for data collection. The Script and Checklist for Data Custodian Interviews in this toolkit can be very helpful to IT personnel in performing this task. ONGOING MONITORING AND ADJUSTMENTS During the course of litigation, recipients of the directive must preserve data created after the order was issued. If the litigation changes in scope, the institution might need to expand the reach of the directive or the number of people to whom the directive applies. In all cases, the institution should periodically issue a new or updated preservation directive to remind individuals of their obligations. In addition, legal counsel and IT should continue monitoring to ensure compliance. After a lawsuit or legal matter has been resolved, counsel should notify the parties under the preservation directive, including IT and records management personnel, that the directive has been lifted, and they can resume their normal data management procedures.

14 14 E-Discovery Toolkit Guide to Preserving Data for E-Discovery DOCUMENTING COMPLIANCE The institution should create and maintain a log of all preservation directives (P.D.) issued. The log should contain the following information about all outstanding directives: Subject of the matter Issuing officer Issue date Names and locations of recipients Date each recipient acknowledged receipt or opened directive In addition, the institution should keep a file on each recipient of the preservation directive, and that file should be kept with the master file for the legal matter. The recipient s file should contain the information in the chart below and be maintained on a regular basis. Date P.D. Sent Date P.D. Acknowledged Date(s) P.D. Resent Date Interviewed Date P.D. Lifted Custodian

15 15 E-Discovery Toolkit Sample Preservation Directive 2. SAMPLE PRESERVATION DIRECTIVE [Letterhead of Issuing Officer] To: [Distribution list, in the ccollective] OR [Each recipient listed individually] From:[Issuing Officer] [Date] Subject: Preservation Directive [Institution s] Duty to Preserve Data and Documents Relating to [Name of legal/investigative/etc.] Matter PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION ATTORNEY WORK PRODUCT The institution recently [received notice of/instituted] a [lawsuit/claim/dispute] regarding [insert brief description of the litigation/claim/dispute as understood by or known to employees]. The institution has a legal duty to preserve all data and documents in its possession that would be potentially relevant to this matter. The data and documents contained in the institution s files and computer systems will also be critical to our investigation into this matter and may be important sources of evidence. For these reasons, we require your assistance in preserving all data and documents in your files or in those files you can access that relate to this matter, as described below. Directive Regarding Preservation of Data Effective immediately, please preserve from deletion all data and documents hard-copy documents and electronic documents that pertain or relate in any way to [description of subject matter, key personnel, relevant time periods, etc.]. This includes: All communications by and any other electronic means involving [subject matter, key players, witnesses, etc.] All information regarding [subject matter, opposing parties, products, key players] [Any additional categories of information likely to be relevant] Destruction, alteration, deletion, and modification of such documents and data are strictly prohibited. Failure to preserve relevant documents and data could result in significant penalties against [the institution].

16 16 E-Discovery Toolkit Sample Preservation Directive This Preservation Directive applies to paper documents as well as any electronic or magnetically stored data. When you are identifying and preserving electronic data, please keep in mind that electronic data includes, but is not limited to, the following: 1. All text files (including word processing documents, spreadsheets, and presentations) Files on shared servers 4. Files on servers 5. Databases 6. Calendar entries 7. Computer system activity logs 8. Internet usage files 9. Backup tapes (if used for purposes other than disaster recovery) 10. Intranet or other internal network applications At your individual work station, this directive requires you to preserve and retain all potentially relevant files stored on your hard drive and any system drives to which you have access. You must also preserve and retain all potentially relevant data on any laptop, home computer, handheld device, diskette, CD, DVD, thumb drive, voic , backup tape, videotape, or any other data storage medium. To comply with this directive, you must immediately disable any functions that automatically delete or overwrite s or other electronic data. Until further notice, the institution is suspending the sections of its regular record retention policy that require deletion or destruction of data. [Institution may want to provide specific instructions on retention, i.e., creation of a litigation folder.] You will be advised when this preservation directive is no longer in effect. Please contact [name] if you need assistance or have any questions or concerns. Thank you for your prompt and full compliance with this preservation directive.

17 17 E-Discovery Toolkit Script and Checklist for Data Custodian Interviews 3. SCRIPT AND CHECKLIST FOR DATA CUSTODIAN INTERVIEWS Data custodians are individuals who may possess records or documents that fall within the scope of an e-discovery preservation directive. IT professionals need to interview all data custodians to ensure they do not miss any information within the scope of a preservation directive. This sample script and checklist provides guidance for IT professionals conducting these interviews. SAMPLE GREETING Hello, my name is [name] and I am from [department] following up on the recent preservation directive concerning the [description of litigation/claim/dispute/investigation]. The purpose of this call is to find out if you have any relevant documents and ask a few questions about your document collection efforts. CHECKLIST Questions Response 1. Did you receive the preservation directive? 2. Do you have any questions about the preservation directive? 3. Have you located any hard-copy documents covered by the preservation directive? a. If yes, can you describe those documents? b. How many? c. Are they separated from your other files? d. Do you continue to receive similar documents? e. Where do you look for documents? Desk drawers Site files Other shared files Stored files

18 18 E-Discovery Toolkit Script and Checklist for Data Custodian Interviews 4. Have you located any electronic or computer files? a. ? Inbox Calendar Sent Items Deleted Items Personal folders Journal Archive folders Public folders b. Hand-held devices (Blackberry, Palm Pilot, etc.)? c. MS Office? Word files Excel spreadsheets PowerPoint presentations d. Other applications? e. Hard drive (including network and local hard drives)? f. Diskettes, CD-ROM, DVD or other external storage device? 5. Do you save files to the institution s network? 6. Do you create backups of your electronic records or files? a. Diskettes? b. CDs or DVDs? c. Any other location? 7. Can you think of any other location to look for documents responsive to the preservation directive? 8. Do you know anyone else who may have relevant documents but did not receive the preservation directive? 9. Do you have any questions? 10. As a final reminder, it is your responsibility to ensure that your relevant data and documents are not deleted. You will be advised by [the issuing officer] with further instructions. SAMPLE CLOSING Thank you for your time, and if you have any further comments or questions, please contact me at [phone number] or [ address].

19 19 E-Discovery Toolkit Sample Data Collection Tracking Charts 4. Sample Data Collection Tracking Charts Institutions that collect data in response to an e-discovery preservation directive or litigation hold need a way to track the data as it searched and culled by attorneys and e-discovery vendors. Attorneys call this tracking the chain of custody and use it to ensure data is not lost in the sifting process. Chart 1 can be used to track all data identified as part of a preservation directive; the second chart only needs to be completed if a vendor is used to help the institution with e-discovery. CHART 1 Privileged and Confidential Attorney Work Product Name of Custodian Title/Position Office Location Date of Collection Name of Technician Collecting Data Description of Data ( , paper documents, electronic documents, other) Volume of Data (megabytes, gigabytes, etc.) Location of Data Collected (e.g., office file cabinet, server, drive/file path) Notes Date Copied to Drive/Pulled

20 20 E-Discovery Toolkit Sample Data Collection Tracking Charts CHART 2 Privileged and Confidential Attorney Work Product Name of Custodian Date Delivered to Vendor Name of Vendor Recipient Date Uploaded/Imaged by Vendor Name of Technician Uploading/Imaging Date of Return to Custodian Name of Delivery Personnel Custodian Signature Other changes in custody not noted above? Yes No If Yes, describe in table below Record of Additional Changes in Custody From (name, company, title) To (name, company, title) Date Reason Education s Own Insurance Company. The material appearing in this publication is presented in summary form and should not be considered legal advice. The use of any material appearing in this publication does not establish that relevant legal requirements or best practices have been met. Copyright 2010 by United Educators Insurance, a Reciprocal Risk Retention Group. All rights reserved. Contents of this document are for members of United Educators only. Permission to post this document electronically or to reprint must be obtained from United Educators.

21 Reference Materials Additional Resources Cloud Computing and E-Discovery Forsheit, Tanya Legal Implications of Cloud Computing Part Four (E-Discovery and Digital Evidence) Information Law Group, November 27, This article analyzes issues that may arise in e-discovery when data is stored in a cloud and discusses the lack of case law on the issue. The article is the fourth in series on legal issues and cloud computing and contains links to the other three articles. Mitrano, Tracy Outsourcing and Cloud Computing for Higher Education, August 14, This memo outlines issues for colleges to consider when negotiating outsourcing of student and employee . Guidelines and Toolkits Guidelines for Electronic Discovery at the University of Washington This is one of the most detailed and comprehensive set of guidelines developed by a university for dealing with e-discovery. It addresses the IT and infrastructure, employee responsibilities for preserving documents, and the litigation hold process. Numerous appendices provide sample forms, checklists, and an excellent set of frequently asked questions. E-Discovery Guideline and Toolkit This toolkit is published by Educause, a non-profit association dedicated to advancing higher education through the intelligent use of information technology. It provides an excellent primer on e-discovery including legal rules, e-discovery models, and best practices in instituting litigation holds. Frequently Asked Questions: Electronic Discovery and Data Preservation net.educause.edu/ir/library/pdf/epo0662.pdf These frequently asked questions provide a good model for institutions that need to educate end-users about their rights and obligations during e-discovery. 21

22 Reference Materials Legal Cases Bakhtiari v. Lutz, 507 F.3d 1132, 1135 (8th Cir. 2007). caselaw.lp.findlaw.com/data2/circs/8th/063867p.pdf A federal appellate court found that a university had made a good faith effort to preserve the s of a graduate student who sued the institution and rejected the student s contention that some s were missing because the university intentionally destroyed relevant evidence. Doe v. Norwalk Community College, 248 F.R.D. 372 (D. Conn. 2007). A federal court found that a college s failure to preserve electronic relevant to a suit brought by a student was at least grossly negligent, if not reckless. The court sanctioned the college by requiring it to pay monetary penalties and holding that a jury could infer that the destroyed evidence was favorable to the student s case. Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, 2010 WL (S.D.N.Y Jan. 15, 2010). This decision by Judge Shira Scheindlin, one of the leading judicial experts on e-discovery, found that failure to issue a written litigation hold and identify all individuals who may possess relevant evidence constituted gross negligence justifying harsh sanctions against legal parties who allowed key evidence to be destroyed. Rimkus Consulting Group Inc. v. Cammarata, 2010 WL (S.D.Tex. Feb. 19, 2010). RimkusConsultingGroup.ashx This decision rejected the harsh approach of Judge Scheindlin in the University of Montreal case above and allowed lesser sanctions when data is lost due to the negligence of a party that did not engage in intentional destruction of electronic evidence. Legal Articles and Websites Electronic Discovery Law This website and blog, hosted by one of the ten largest law firms in the U.S., provides multiple articles and updates each month on developments in e-discovery law. It allows users free access to its archives dating back to

23 Reference Materials Craig D. Ball, P.C. Craig Ball is a trial attorney, e-discovery consultant, and prolific writer on law and technology issues. His website offers free access to more than 20 of his articles as well as his Ball in Your Court columns published in Law Technology News. Deutchman, Leonard, The Last Words on E-Discovery? The Legal Intelligencer, April 28, This article analyzes the latest standards for lost data in e-discovery cases by reviewing two cases decided in 2010 by federal judges who are experts on e-discovery: Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC and Rimkus Consulting Group Inc. v. Cammarata. 23

24 Education s Own Insurance Company. United Educators Insurance, a Reciprocal Risk Retention Group, is a licensed insurance company owned and governed by more than 1,160 member colleges, universities, independent schools, public school districts, public school insurance pools, and related organizations throughout the United States. Our members range from small private schools to multi-campus public universities. UE was created in 1987 to be Education s Own Insurance Company on the recommendation of a national task force organized by the National Association of College and University Business Officers. Our mandate is to provide a longterm, stable alternative to the cyclical unavailability and erratic pricing of commercial liability insurance. We understand the special nature of education and are committed to reducing the overall cost of risk for our policyholders. UE members benefit from tailored coverages as well as value-added, education-specific services in claims and risk management. United Educators is Rated A (Excellent) by A.M. Best. For more information, visit our website at or call us at (301) United Educators has a Best s Rating of A (May 2010). For the latest rating, access The material appearing in this publication is presented for informational purposes and should not be considered legal advice or used as such. Copyright 2010 by United Educators Insurance, a Reciprocal Risk Retention Group. All rights reserved. Contents of this document are for use by members of United Educators only. Permission to post this document electronically or to reprint must be obtained from United Educators.

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