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Litigation Holds and E Discovery

Electronic discovery, or e-discovery, refers to the process of, “retrieving, saving and producing electronically stored information in anticipation of and during litigation.”  In 2006, the Federal Rules of Civil Procedure were amended to include the preservation and production of electronically stored information (“ESI”).  ESI may be stored on PDAs, laptops, office computers and portable media (such as USB drives, CDs, DVDs, etc.).  Failure to comply with the requirements for producing ESI may subject the University to serious sanctions.

When NC State receives knowledge of potential or actual litigation, the following procedures will be followed:

  1. The Office of General Counsel (“OGC”) will send a Litigation Hold Notice to all employees who may be in possession of potentially relevant information.  The Litigation Hold Notice will inform employees of the nature of the threatened or actual lawsuit and instruct employees to preserve documents relating to the claim(s).  Data stewards and data custodians will be included on the Litigation Hold Notice and should preserve any potentially relevant information; however, data stewards and data custodians will generally not be required to respond to an Electronic Records Questionnaire (below).  All employees other than data stewards and data custodians should confirm receipt of the Litigation Hold Notice immediately upon receipt.
  2. The Office of Information Technology (“OIT”) will send employees who may be in possession of potentially relevant information an Electronic Records Questionnaire.  The form shall be completed and returned to the OIT within ten (10) business days of receipt.
  3. Employees in possession of potentially relevant information are under a legal obligation to immediately preserve the documents wherever located and in whatever form.  Information subject to the Litigation Hold Notice may be in hardcopy or electronic form. Information may be located in division files, college files, department files, individual files, staff files and electronic files and folders, and may also include any records generated as part of the individual’s employment.
  4. The deletion, overriding or any other destruction of electronic information relevant to the lawsuit should be immediately suspended.  Documents subject to the Litigation Hold Notice must be preserved even if they would normally be destroyed in accordance with the University’s Records Retention Schedule.
  5. Any new electronic information that is generated after the date of the Litigation Hold Notice must also be preserved.
  6. The OGC will notify employees when the need to produce the ESI is required in litigation.  Until such time as the notice is issued, the ESI must be preserved.  The OGC will also notify the employees when the need to preserve is over.

Any questions regarding the process for preservation of data should be directed to the OGC at 919-515-3071. 

RESOURCES

Electronic Discovery and Data Preservation FAQs
E-Discovery Guidelines and Toolkit
Preparing for E-discovery
Electronic Discovery in North Carolina: A Guide for Public Sector Entities to the Rules and Tools for Litigating in the Digital Age 1
Conference of Chief Justice Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information

1 - Posted with permission of the School of Government, copyright 2009. This publication is for educational and informational use. Use of this publication for commercial purposes or without acknowledgment of its source is prohibited. For more information, contact the School of Government, CB# 3330 UNC Chapel Hill, Chapel Hill, North Carolina 27599-3330; telephone: 919-966-4119; fax 919-962-2707; Web address: www.sog.unc.edu.