PRESERVATION OF DOCUMENTS AND DISCOVERY ISSUES August 2, 2011 Susan A. Griisser Assistant Attorney General Office of the Attorney General Educational Affairs Division 200 St. Paul Place Baltimore, Maryland 21202-2021 410 576-6482, sgriisser@oag.state.md.us
WHAT DOCUMENTS NEED TO BE KEPT/PRESERVED/PRODUCED? ALL documents relevant to the issue in the case or that may lead to discoverable evidence in any written form- emails, written notes, memo s, thumb drives, text messages. (typed, handwritten documents ) Federal Rule 34(a): Any party may serve a request to produce designated documents, electronically stored information including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained if necessary, into reasonably useful form 2
The duty to preserve/produce documents includes ALL documents you thought were confidential ie- tenure committee documents, notes made during deliberations, your personal phone text messages, personnel records.. If it s relevant or could reasonably lead to admissible evidence then it is generally required to be produced. Also includes voice mails (if still recoverable), documents on your own personal devices- phone, home computers, thumb drives 3
WHAT IS DISCOVERABLE EVIDENCE/WHAT MUST BE PRESERVED? In a lawsuit, discovery sought must be relevant and reasonably calculated to lead to admissible evidence. A party cannot avoid discovery when its own record keeping system makes discovery burdensome. Toledo Fair Housing Center v. Nationwide Mut. Ins., 703 N.E. 2d 340 (Ohio Ct. Comm. Pleas 1996) 4
Reasonable document retention is necessary, you can t decide to throw everything away. Rambus, Inc. v. Infineon Techs., 222 FRD 280,298 (2004) plaintiff, knowing that it was likely to commence patent litigation, could not employ a computer program designed to destroy relevant evidence. 5
WHY DO WE HAVE TO PRESERVE DOCUMENTS? The duty to preserve documents applies to potential/actual plaintiffs, defendants and third parties. In Court cases there are sanctions against parties for their failure to preserve and/or produce documents- Monetary sanctions including but not limited to attorneys fees. Evidence- the party cannot offer evidence on certain issues The Court can order the striking of all or part of a pleading 6
PRESERVATION OF DOCUMENTS (CONTINUED) Termination of the law suit Precludes entry of summary judgment- Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D.Md. 2007) Adverse Inference Instruction- Cedars-Sinai,, 18 Cal. 4 th 1,11 (1998) ie- in California standard instruction 205 reads: You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party. The Sanction policies of the federal court are 7
WHEN DOES THE DUTY TO PRESERVE ATTACH? Based on Common law it s the knew or should have known standard: Carlucci, 102 F.R.D. 472 (S.D.Fl. 1984)- when the product was designed Remington, 836 F.2d 1104 (8 th Cir. 1988)- when the court complaint is received Zubulake IV, When litigation is suspected, 220 F.R.D. 212 (S.D.N.Y. 2003). Union Pac. R.R., 2004 U.S.App.LEXIS 6 (8 th Cir. 2004) 8
INACCESSIBLE DATA Rule 26(b)(2)(B): Carves out information not readily accessible because of undue burden or cost Party propounds discovery Responding party has burden to identify inaccessible data Requesting party may file motion to compel Responding party has burden to show information is inaccessible 9
INTERNAL UNIVERSITY DOCUMENT RETENTION Internal University actions (ie- disciplinary, promotions, merit pay, tenure ) should preserve all documents in an organized manner in a place where they can be easily retrieved. Deans, departments chairs, administrators need to be able to find documents when needed including after you have left Personnel, disciplinary documents should never be thrown out no matter how old The safest preservation method is to print out all emails and put in the paper file and well as scanning paper documents into an electronic format. 10
PRESERVATION LETTERS Must be complied with, very serious sanctions to University and possibly you for failure to comply. If you are aware of others who have information ie your administrative assistants, other faculty members you need to notify the University in- house counsel (Mrs. Billie), the VP for Administration (Dr. Holden) and/or the Assistant Attorney General assigned to the case. 11
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SUMMARY Federal Rules/Md. State Rules duty of preservation of documents including electronically preserved documents Remember there are serious sanctions for your failure to not preserve and/or produce documents It is important to have an organized method of preserving documents particularly departmental personnel documents- iesigned and final copies of evaluations Everything your write should be done in a professional manner and remember it is all discoverable Do not purge any potential personnel, disciplinary, evaluation, documents Any questions on documents not relating to a specific case, contact Mrs. Billie and/or Dr. Holden. 20
QUESTIONS??? 21