Parties to a lawsuit have always been required to preserve and produce “evidence” that was relevant to the claims in that lawsuit. In the past, such requirements meant that paper documents were to be maintained. Now, courts recognize that evidence also includes “electronically stored information” (“ESI”). As a result, when a legal claim is filed against Seton Hall University, either in court or with an administrative enforcement agency, or when such a claim is reasonably anticipated, the University and its employees are obligated to preserve electronically stored information as well as all other traditionally preserved information that may be relevant to that claim (“Information”). Similar obligations arise when the University receives a subpoena for information, even though the University may not be a party to the lawsuit. Failure to preserve such evidence may result in sanctions and liability imposed on both the University and those employees who fail to take appropriate steps to preserve evidence.
Although ESI and other Information must be preserved, it will not be produced to an op-posing party without first being reviewed by University counsel to determine relevance and to re-move legally privileged information.
The purpose of this policy is to assist University employees in fulfilling their responsibilities to preserve and produce relevant evidence.
- When a lawsuit is filed against the University, only the Office of General Counsel (“OGC”) is authorized to accept receipt of the summons and complaint.
- Upon receipt of a summons and complaint or otherwise learning that a lawsuit or a charge with a state or federal administrative enforcement agency has been filed against the University, or that one is reasonably anticipated to be filed, OGC shall notify the Executive Director of Information Technology (“IT”).
- OGC shall send a Document Preservation Notice to IT and all relevant University employees notifying them of their legal obligation to preserve and not delete, destroy, alter or modify ESI and other Information, pertinent to the case.
- Document Preservation Notices are confidential and may only be discussed by the recipient with other employees on a need to know basis.
- Upon receipt of the Document Preservation Notice, immediate review and retention of all ESI and other Information held or maintained by a University employee is required by law and pursuant to this University policy. Any employee who receives a Document Preservation Notice is required to follow the specific instructions in the Notice. Failure to do so may result in discipline and expose the employee to court imposed sanctions.
- ESI and other Information include hard copy documents, audio recordings, videotape, e-mail, instant messages, word processing documents, spreadsheets, databases, calendars, telephone logs, contact manager information, Internet usage files, attendant data for each file that may not be visible and all other electronic information maintained created, received, and/or maintained by the employee or the University on computer systems.
- Sources for ESI and other Information include all hard copy files, computer hard drives, re-movable media (e.g., CDs and DVDs), laptop computers, PDAs, Blackberry devices and any other locations where hard copy and electronic data is stored.
- Sources for ESI and other Information may include personal computers an employee uses or has access to at home or at other locations.
- Sources may also include inaccessible storage media, such as back-up tapes, which may contain relevant electronic information that does not exist in any other form.
- Upon receipt of a Document Preservation Notice and in order to comply with his/her legal obligations, an employee must suspend deletion, overwriting or any other possible destruction of relevant ESI and other Information, including the disabling of any “janitorial” functions such as automatic deletion of e-mails. For relevant ESI and other Information, personal practices such as the deletion of e-mails, voice mail, drafts of documents and similar practices must be suspended.
- Relevant ESI must be preserved in its original electronic form on the media which it is stored, regardless of whether it has been reduced to a hard-copy or whether a hard-copy already exists. ESI must not be transferred from the media on which it is then stored to any other type of media.
- Hard copies of ESI must also be preserved.
- Any new ESI and other Information created after receipt of the Document Preservation Notice must also be protected and preserved if relevant to the case.
- Upon receipt of a Document Preservation Notice, IT shall address it according to divisional and/or departmental policy.
- The obligation to preserve ESI and other Information also arises when the University “reasonably anticipates” litigation. For purposes of this policy, “litigation” includes the pursuit of a charge with any state or federal administrative enforcement agency. The mere possibility of litigation does not necessarily mean that litigation should be “reasonably anticipated.” The duty to preserve is created when credible facts and circumstances indicate that a specific, predictable and identifiable litigation is likely.
- Factors that should be considered in evaluating whether litigation is “reasonably anticipated” include, among other things:
- Attorney statements or letters on behalf of any employee, student or outside party regarding a dispute with the University. Such attorney letters should immediately be referred to one’s supervisor and OGC. Any other inquiries by such attorneys, whether by telephone or in person, should immediately be referred to OGC.
- Statements regarding the potential or prospect for litigation.
- Complaints or grievances filed internally with the University.
- Initiation of dispute resolution procedures by employees, students or outside vendors.
- Termination of employment.
- Dismissal of a student from the University.
- Significance or consequence of a dispute.
- Event reported in the press.
- Any employee who believes that litigation is “reasonably anticipated” should notify his/her supervisor, with notification continuing through all supervisory levels, until notice is provided to the appropriate Vice President. At any time, an employee may alternatively notify Human Resources or the Compliance Officer. If, however, a supervisor is the employee from whom the litigation is “reasonably anticipated,” notice should be provided to the next level supervisor.
- The divisional Vice President, Human Resources or the Compliance Officer shall notify the OGC if any one of them concludes that litigation is “reasonably anticipated.” OGC may then issue Document Preservation Notices.
- Upon transfer, reassignment or promotion within the University, retirement or any other separation from the University, each employee is obligated to place all preserved ESI and other Information under the control of his/her supervisor, unless that supervisor is the employee from whom the litigation is “reasonably anticipated,” in which instance the preserved ESI and other Information shall be placed under the control of the next-level supervisor. The supervisor shall notify the Executive Director of IT for further instruction.
- Upon an employee’s transfer, reassignment, promotion, retirement or any other separation from the University, Human Resources shall notify IT.
- In all such instances, IT shall manage the preservation of ESI and other Information and the reassignment, if any, of the employee’s IT equipment. If any such employee is assigned new IT equipment, the original IT equipment containing any ESI or other Information shall be preserved until IT authorizes its release and reassignment.
- When the need for preservation of ESI and other Information has expired, OGC shall notify those employees who originally received a Document Preservation Notice and IT. Retention shall then be governed by applicable University policies.
By Monsignor Robert Sheeran, President, on the recommendation of the Executive Cabinet on October 21, 2009.
October 21, 2009