All VSCC employees are required to suspend routine or intentional purging, overwriting, re-using, deleting, or any other destruction of electronic information relevant to a federal law dispute, including electronic information wherever it is stored – at a VSCC workstation, on a laptop, at an employee’s home, etc. The electronic information must be preserved in its original electronic form. The same requirement exists for paper documents. VSCC employees must suspend routine or intentional destruction of paper documents that are relevant evidence in a federal lawsuit as outlined in a Litigation Hold Notice. This requirement includes all forms of attorney-client privileged and non attorney-client privileged electronic documents. In the context of federal litigation, although all information must be preserved, no data will be disclosed to the opposing party without first being reviewed to determine legal necessity, relevance, and privilege. Privileged documents (e.g., attorney-client communications) will not be disclosed to the opposing party.
Federal law requires parties to a lawsuit pending in federal court to preserve electronic data and documents pertaining to the lawsuit in conformance with the Federal Rules of Civil Procedure. There is a legal duty to preserve evidence (e.g., documents and things), including electronic documents, when VSCC has notice that the evidence is relevant to pending federal litigation.
Litigation Hold Procedures
Institution's Notification of Federal Litigation (Responsible Party: All Employees)
1.1. Employees have an affirmative duty to inform VSCC’s Records Coordinator (Vice President of Business and Finance) when they receive official or unofficial notification of federal litigation or anticipated federal litigation against the institution.
1.2. VSCC Employees are considered to be in receipt of official notice of litigation when they receive a complaint, summons, and/or other official documents related to a federal lawsuit.
1.3. Additionally, employees that receive notification of any of the following documents as actions that are related to anticipated federal litigation must notify the Records Coordinator accordingly.
1.3.1. Equal Employment Opportunity Commission Charge
1.3.2. Tennessee Human Rights Commission Charge iii. Office of Civil Rights Complaint
1.3.3. Occupation Safety Health Administration Violation Complaint v. Employee or student Harassment / Discrimination complaint pursuant to TBR Policy (P-080)
1.3.4. Title VI or Title XI Complaint vii. Employee, student, or third party complaint alleging a violation of any federal law
Employee's Notification of Federal Litigation to Records Coordinator (Responsible Party: All Employees)
2.1. Based on the abovementioned parameters, employees who have official or unofficial knowledge of federal litigation or anticipated federal litigation against the institution must inform the institution's Records Coordinator, in writing, of the matter within two (2) business days of their receipt of notification.
Records Coordinator's Issuance of Litigation Hold Notice (Responsible Party: Records Coordinator)
3.1. The institution's Records Coordinator, or designee, will issue an official litigation hold notice regarding the matter to the appropriate individuals within five (5) business days of receipt of notification of pending litigation or anticipated litigation. Do not distribute the model litigation hold notice. Should a matter arise that requires your institution to implement an official litigation hold, the Records Coordinator, or a designee, must contact the institution's attorney to discuss drafting a litigation hold notice for the particular case.
Employees' Compliance with the Litigation Hold Notice (Responsible Party: Employee recipients of the litigation hold notice)
In response to an official litigation hold notice issued by the institution's Records Coordinator or his/her designee, all individuals who receive the notice must compile paper and electronic records (including e-mails, voicemails, videos, etc.) as instructed in the notice letter. Electronic records must be retained in the original electronic format (e.g., burned to disk / CD, saved in a secure folder on the system server that is not subjected to unannounced deletion, etc.). It is not sufficient to print paper copies of electronic records as they must be maintained in their original electronic format. It is the responsibility of individuals to whom the litigation hold notice is issued to retain all records that are responsive to the notice until they receive written notification indicating otherwise.
VSCC Source: February 25, 2008 President's Cabinet
Volunteer State Community College Litigation Hold Internal Procedures
Information Technology Responsibility
- Assist the Records Coordinator (Vice President of Business and Finance) with identifying where Electronically Stored Information (ESI) is located, including all institutionally owned equipment, personally owned by the individual or by a third party. These locations include but are not limited to: PCs, PDAs, email systems, instant messaging systems (IM), voice mail (VM) systems, network storage, etc.
- Provide the Records Coordinator with information as to how long ESI can be expected to be retrievable through routing system backup procedures performed by IT.
- Assist the Records Coordinator with the identification of threats of non-compliance so the appropriate policies can be developed to mitigate the risk.
- Coordinate with the Records Coordinator in the development of an archival strategy consisting of hardware, software, and process accountability. The process should ensure that the information saved complies with TBR guidelines and policies as well as state and federal law.
- Coordinate with the Records Coordinator to establish protocols, systems, and controls that can be easily managed and monitored in order to ensure compliance.
Telecommunication Coordinators Responsibility
- Assist Records Coordinator with the retrieval of voicemail.
- Provide Records Coordinator with information on how long voice mail can be expected to be retrievable through a backup system.
- When appropriate, monitor/record telephonic transactions.
Email and Document Archiving
When you receive notification that ESI (email or documents) you created or maintained are to be maintained as part of a litigation hold, you are responsible for maintaining those documents in an unaltered state. To meet those requirements, please follow the instructions in the appendices below to archive the documents safely.