Legal Proceeding Preparation (E-Discovery) Procedure
Approved by Executive Council on August 12, 2014
Reapproved by Executive Council on April 5, 2016
|Policy Number||Policy Owner|
The State University of New York College at Plattsburgh is committed to operating to the highest ethical and legal standards. Ensuring that the College is able to comply with legally-mandated requests for information for legal proceedings is a critical aspect of this commitment. Such requests may be for electronically stored information (ESI). This procedure outlines those steps necessary to identify, collect, preserve, and produce ESI to meet legal obligations.
2.0 Revision History
|4/6/2016||2.0||Major Revisions||5.0, 7.14|
3.0 Units and Persons Affected
All college employees
The College will comply with all legal obligations including those for preserving and producing evidence for legal proceedings.
- College Employee: All employees of the College including student workers and volunteers. (Please note: Research Foundation and College Auxiliary Services employees are excluded from this procedure).
- College Leadership: Members of the President's Cabinet including the President, Vice Presidents, and Chief of Staff.
- Counsel: An attorney of the University’s Office of General Counsel.
- Custodian: Any officer, employee, or agent of the College who possesses, controls, or maintains any record, information, or data of the College.
- E-Discovery: A short-hand term for the process of preserving and exchanging electronically stored information in the context of modern litigation or other legal processes.
- E-Discovery Response Team: A taskforce appointed by the President of SUNY Plattsburgh to assess, implement, and monitor/facilitate the campus’s E-Discovery processes and to train various campus constituencies to ensure preparation for E-Discovery events and compliance with designated procedures. The Team is chaired by the Assistant to the VP for Administration.
- Electronically Stored Information (ESI): Any information, record, document, file or data that is stored electronically. ESI may include documents, audio recordings, videotape, email, instant messages, text messages, word processing documents, spreadsheets, databases, calendars, telephone logs, contact information, internet usage files, metadata, and all other electronic information created, received, and/or maintained on computer systems. ESI may reside on any College program, system, device, or server of any kind or on an employee’s personal devices and accounts if such devices and accounts are used for conducting College business.
- IT Personnel: The Chief Information Officer of the College or his/her designee.
- Key Person: A College officer, employee, or agent who possesses, controls, or maintains any record, information, or ESI that is subject to a legal hold
- Legal Hold: The process by which the Office of General Counsel directs the preservation of certain records and ESI for the purposes of complying with a legal obligation.
- Legal Preservation Notice: A set of written instructions that is sent from Counsel to Key Persons in order to initiate a legal hold.
- Records Management Officer (RMO): A College officer responsible for developing and administering a Records Management Program for the systematic control of records.
- Triggering Event: Any event or set of circumstances that cause Counsel to reasonably anticipate litigation or another legal process that gives rise to a preservation obligation.
6.1 All Employees:Participate in College trainings pertaining to E-Discovery and Records Retention as requested. Notify the Assistant to the VP for Administration of threats of legal action and other potential Triggering Events. Limit the amount of ESI that is stored on systems and devices that does not have legal, operational, or historical value to the College. Refrain from using College accounts and devices for personal activities. Be aware that the College has a right to inspect and monitor all use of its accounts and devices regardless of whether the use is personal or official. There is no privacy interest in College records and ESI, regardless of where such data is stored. Maintain strict confidentiality on all E-Discovery events.
6.2 Counsel: Learn Campus and System ESI systems, including email, word processing, spreadsheets, databases, student information, backup and archival systems, and websites. Issue Legal Preservation Notices upon the occurrence of any event giving rise to a reasonable anticipation of litigation or another legal process for which ESI may be relevant. Work with the E-Discovery Response Team to identify Key Persons. Describe litigation facts and issues sufficiently to facilitate identification of relevant documents or information, including appropriate search terms or key words to use. Identify appropriate time period for the Legal Hold and determine whether hold is retrospective or continuing. Define scope/types of ESI for recipients of Legal Preservation Notice. Work with IT Personnel to determine appropriate method for preserving ESI. Issue instructions regarding future communications on the subject. Monitor compliance with Legal Preservation Notice. Issue periodic reminders of Legal Holds still in effect. Set review parameters and participate in ESI review process to ensure appropriate determinations are made regarding relevance, privilege, and other factors related to the duty to preserve ESI. Manage any necessary production of ESI and other records in consultation with IT Personnel, RMO, the Attorney General, and other appropriate parties. Keep E-Discovery Team informed during the process to its completion.
6.3 Assistant to the VP for Administration: Serve as a Liaison between the College and Counsel. Receive, assess, and investigate possible Triggering Events. Chair the E-Discovery Response Team. Compile and maintain all records related to an E-Discovery event. Update College Leadership, E-Discovery Response Team, Key Persons and Custodians on the status of E-Discovery events
6.4 E-Discovery Response Team: Oversee E-Discovery events from the time that Counsel determines a Triggering Event has occurred through preservation, review, and, if necessary, production. This includes communication, oversight, and management of the process. Assess the campus’s E-Discovery efforts and implement changes to improve procedure. Train campus constituencies to ensure preparation for E-Discovery events and to ensure adherence to this procedure. Recommend whether external consultants will be needed for E-Discovery collection, preservation, and production.
6.5 Custodians/Key Persons: Comply with all directives of the E-Discovery Response Team. Understand the basic operations of electronic storage systems and programs that are used in areas of responsibility. Manage records and ESI according to applicable laws, regulations, policies, and retention schedules. This includes limiting the amount of ESI that is stored on systems and devices that does not have legal, operational, or historical value to the College. Upon receipt of a Legal Preservation Notice, take steps to preserve relevant information as instructed by the notice, no matter where it is located. Do not delete, purge, overwrite, or otherwise modify existing relevant ESI (or newly created relevant ESI) even if it is a duplicate, draft, or “personal". Provide Counsel and the E-Discovery Response Team with information on the potential sources, locations, nature of relevant ESI, and other records in his or her possession or control. Give IT Personnel or Counsel access to all relevant records and ESI in order that such information can be preserved and retrieved, if needed.
6.6 IT Personnel: Educate Counsel and Custodians on basic operations of systems, devices, and programs under their control, including back-up, archiving, and automatic delete functions or programs. Manage use of IT systems to ensure Custodians comply with applicable policies, including those related to Records Management. This includes assisting in the destruction of records, data, and documents for which the retention period has expired. Contract and work with capable, responsible vendors, including any vendors responsible for E-Discovery services. Assist Counsel in identifying potential ESI sources. Work with Counsel and Key Persons to implement Legal Holds. Upon direct receipt of a Legal Preservation Notice, or at the instruction of Counsel, take steps to preserve relevant ESI. This may include using administrative controls to lock down or copy information on College accounts and devices with or without the knowledge of the user. Work with Key Persons to ensure preservations of relevant data created after the receipt of a Legal Preservation Notice, if any. This may include disabling automatic deletion systems or creating mirrored accounts and backups. Where possible, strive to use electronic systems, devices, and programs that are functionally capable of meeting obligations described in this procedure, including the long-term retention of ESI and functionality to allow easy archiving, searching, and sorting of ESI.
6.7 Records Management Officer: Promote campus-wide compliance with records management polices and best practices. At the direction of Counsel, communicate directly with Key Persons and work with IT Personnel to ensure that all preserved materials are secured and monitored .
6.8 Vice President (VP) for Administration Assist the E-Discovery Response Team with ensuring compliance with E-Discovery collection, preservation, and production. Review and, if warranted, approve the request for external consultants.
6.9 College Leadership Keep abreast of developments and provide guidance for E-Discovery Response Team.
7.1 All employees of the College should familiarize themselves with campus policies and potential Triggering Events and communicate any such concerns to the Assistant to the VP of Administration
7.2 The Assistant to the VP for Administration will investigate the potential Triggering Event and gather any other relevant information to pass along to Counsel 7.2.1 Counsel will investigate potential Triggering Events from other sources independent of the College (e.g. Attorney General’s Office, Equal Opportunity Commission, etc.)
7.3 Counsel will make a determination as to whether the Triggering Event merits the issuance of a Legal Hold
7.3.1 If a hold is merited, Counsel will issue a Legal Preservation Notice to the Assistant to the VP for Administration
7.3.2 If a hold is not merited, Counsel will communicate this decision in writing to the Assistant to the VP for Administration [PROCEDURE ENDS]
7.4 The Assistant to the VP for Administration will notify the VP for Administration and other College Leadership about the receipt of the Legal Preservation Notice
7.5 The Assistant to the VP for Administration will convene the E-Discovery Response Team and any relevant Key Persons promptly after notification
7.6 The E-Discovery Response Team will review the Legal Preservation Notice and will do the following:
7.6.1 Identify the location of relevant ESI
7.6.2 Identify the custodians of that ESI
7.6.3 Identify the steps that must be taken to collect and preserve the ESI
7.6.4 Review any specifications for production that have been included in the Legal Preservation Notice
7.6.5 Make a recommendation as to whether an outside vendor will be necessary to meet the obligations of the Legal Hold
7.6.6 Establish roles, responsibilities, and deadlines for Team members
7.7 Unless instructed to the contrary, the E-Discovery Response Team will send notices to Key Persons and Custodians informing them of the Legal Hold and instructing them to take relevant steps to immediately preserve any information. Where feasible, these notices will be delivered in person
7.8 The Assistant to the VP for Administration will compile all minutes and other documentation of the process for records purposes
7.9 The E-Discovery Response Team will notify the VP for Administration of the steps that are being taken, including any recommendation for outside vendor support
7.9.1 The VP for Administration will review recommendation for external consultants to assist with E-Discovery collection, preservation, and production and will make determination to authorize
7.10 IT Personnel, external consultants, the RMO, and Key Persons and Custodians will take all steps necessary to comply with Legal Hold
7.10.1 All parties should identify routine record destruction practices and take immediate steps to suspend them
7.10.2 Steps should be documented to record the action being taken, the date and time of the event, the person responsible, chain of custody, etc.
7.10.3 All mirrored information or backups taken should be properly secured and with controlled access
7.10.4 Once all ESI is collected and preserved, IT Personnel should notify the Assistant to the VP for Administration and provide detailed information on what has been done and how it is being preserved. This will be included in the documentation file
7.11 Within an appropriate time frame, the E-Discovery Response Team will follow up with recipients of the notices to ensure that appropriate steps are being taken. All communication should be documented and sent to the Assistant to the VP for Administration for the file
7.12 The Assistant to the VP for Administration will notify E-Discovery Response Team, the VP for Administration, and Counsel that ESI has been secured
7.13 Counsel will monitor situation and notify the Assistant to the VP for Administration if ESI must be produced
7.13.1 If ESI must be produced, IT Personnel will work directly with Counsel to ensure that production specifications are met and will then produce the ESI
18.104.22.168 IT Personnel will complete documentation forms and will provide them to the Assistant to the VP for Administration
22.214.171.124 The Assistant to the VP for Administration will provide the E-Discovery process documentation file to Counsel [PROCEDURE ENDS]
7.14 Annually, the Assistant to the VP for Administration will send notices to all Key Persons and Custodians informing them of any Legal Holds that are still in effect and reminding them of their obligations under these rules
7.15 On the same schedule, the Assistant to the VP for Administration will send notices to the E-Discovery Response Team, VP for Administration, and other College Leadership informing them of the status of all active Legal Holds
7.16 Counsel will notify the Assistant to the VP for Administration when a Legal Hold is no longer necessary
7.17 The Assistant to the VP for Administration will forward notification to the E-Discovery Response Team, the VP for Administration, and College Leadership
7.18 The E-Discovery Response Team will mail notifications to Key Persons and IT Personnel informing them that the documents are no longer subject to a legal hold and can be destroyed in alignment with their relevant retention schedules
7.19 Recipients of the notifications will destroy those records that are beyond retention schedules
7.20 Members of the E-Discovery Response Team will follow up with Key Persons to ensure that the data has been destroyed. Responses should be documented and sent to the Assistant to the VP for Administration
7.21 The Assistant to the VP for Administration will compile all documentation and finalize records for the E-Discovery event [PROCEDURE ENDS] Please note that failure by any College Employee to adhere to these procedures may result in disciplinary action and/or legal sanctions
- Sample Legal Preservation Hold Notification
- Sample Legal Preservation Hold Reminder
- Sample Legal Preservation Hold Cessation
- Sample ESI Media Chain of Custody Form
For questions about the Campus Handbook, please contact:
Management Services Office
Office: Kehoe 710-11
Phone: (518) 564-2538
Fax: (518) 564-2540