Litigation Hold Notices & Electronic Discovery A R E S O U R C E F O R W S U E M P L OY E E S

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1 Litigation Hold Notices & Electronic Discovery A R E S O U R C E F O R W S U E M P L OY E E S

2 What is a Litigation Hold Notice? Notice from an authorized department (e.g., Attorney General s Office Torts Division, WSU Risk Management, or other unit which is involved in responses to complaints or lawsuits) that a lawsuit has been filed or litigation is reasonably anticipated in the future Notice could be oral, or by , or by letter Directs you to identify and locate records pertaining to the matter described Directs you to suspend routine destruction of these records WSU and individuals are exposed to possible liability and sanctions if obligations not met

3 What is a record? Scope is broad! Records include paper and electronic records Business related information wherever it is stored (WSU workstation, PDA, even your home computer) All forms of records including , word processing, calendars, voice mail, videos, photos, Post-it notes, etc.

4 Your Duties Under a Litigation Hold Suspend routine destruction of records Discontinue personal practices for destruction of records Preserve records in their original electronic form Preserve existing hard copies Preserve new records generated or received after the Litigation Hold Follow specific instructions in Litigation Hold notice Present questions to designated contact person Inform your supervisor

5 Locating Records Where do I search? For what do I search? All locations that contain documents relevant to the matter, including your home On-site and off-site locations Electronic storage locations: mail folders, document folders, servers, CDs, DVDs, hard drives, desktops, portable devices, etc. Systems outside of WSU ownership where WSU records may reside (e.g., remote applications such as Office Live Workspace, Google documents, Wikis managed by another institution, or list archived by another institution) messages Word processing documents Spreadsheets Databases Digital images Audio/video files Web pages Instant messages Blogs Calendars Technical drawings

6 Tips on Searching for Electronic Documents Contact your departmental IT staff with questions

7 What Do I Do After Locating Records? Follow the directions in the Litigation Hold notice and ask questions if unclear Do not make hard copies of electronic records and delete the electronic version; records should be preserved in their original format First step is to locate and preserve; later, you may be instructed to copy all or certain records and send them to those involved in managing the case (but keep originals in their original formats) Store all records in a safe place where they will not be destroyed

8 How Long Must I Hold Documents? Until you receive final notification (via or letter) that confirms the matter is resolved At that time, document retention reverts back to the regular records retention schedule; do not simply discard/delete the documents Feel free to check in with the WSU or AGO unit managing the complaint or litigation to check on its status

9 Will My Records Be Disclosed? Possibly! Record identification and preservation are the first steps in the Litigation Hold process WSU s attorneys and/or those managing the litigation may request copies of the records; WSU s attorneys will carefully decide whether records should be disclosed in litigation If your records are requested, you should keep your originals and provide only copies

10 What is Electronic Discovery? Process by which relevant electronically stored information is gathered by the parties in a lawsuit Electronic records are treated the same as other evidentiary documents and are subject to discovery requests and rules Federal Rules of Civil Procedure require preservation of electronic records when litigation is reasonably anticipated

11 Why is Electronic Discovery Important Court decisions and discovery rules place substantial obligations on public and private organizations to: Preserve all electronic records that could be relevant to pending or reasonably anticipated litigation Retrieve and produce these in the litigation WSU and individuals have a legal duty to preserve and turn over, as required, electronically stored records WSU and individuals are exposed to possible liability and sanctions if obligations are not met

12 Who Can Help? Department system administrator WSU Risk Management Office or the contact person specifically identified in the Litigation Hold notice Sometimes others will be assigned to assist, including WSU Information Systems, an outside attorney, or an IT consultant

13 Sanctions Sanctions for failing to preserve evidence to include electronically stored information could include or result in: Monetary sanctions levied against WSU or an individual Dismissal of claim(s) Loss of the ability to assert certain defenses Adverse jury instructions designed to punish (or sanction) a party in litigation for failing to properly preserve evidence to include electronically stored information The severity of the sanction will depend on whether the conduct that resulted in the failure to properly preserve evidence was intentional, grossly negligent, or negligent

14 Where Can I Get More Information? BPPM Evidence Preservation Designated WSU Contact for the Litigation Hold WSU Risk Management ( ) Attorney General s Office ( )