Risk Management Services
Washington State University preserves all reasonably identifiable potential evidence when litigation has been filed or is reasonably anticipated.
Designation of a document (electronic or hard copy) or a tangible item as potential evidence does not presume that it will be considered admissible in a court of law or other forum.
Court rules and case law require that litigants and potential litigants preserve all reasonably identifiable potential evidence in all forms when litigation has been filed or is reasonably anticipated or reasonably foreseeable. Failure to take reasonable steps to preserve records and other evidence could lead to significant sanctions by the courts. Instituting good faith measures and attempts to preserve records and other evidence is the cornerstone to preventing potential sanctions. This policy provides guidance and procedures concerning how the University satisfies these legal obligations.
This policy establishes evidence preservation procedures applicable in the event of litigation or potential litigation to which the University is a party. It also applies if University employees acting within the scope of their employment are parties. The policy applies to all documents and other potential evidence owned or under the control of the University or University employees. It requires preservation of potential evidence, including but not limited to electronically stored information (ESI) in its original (native) format, regardless of format or medium, when litigation is reasonably anticipated or is reasonably foreseeable.
Electronically Stored Information (ESI)
Computer data or electronic recorded media of any kind that is stored in an electronic form that can be retrieved and examined. ESI may include information and/or documentation stored in various software programs such as: e-mail, Outlook, Word, Excel, Access, Publisher, PowerPoint, Adobe Acrobat, SQL databases, Web pages, voice mail systems, digital imaging systems, or any other software or electronic communication programs or databases. ESI may be located on network servers, backup tapes, PDAs, flash drives, CDs, DVDs, floppy disks, work computers, telephone systems, cellular telephones, laptops, or any other electronic device used to do University work. Such evidence may also be located on any personal or privately-owned devices used at an individual's home or otherwise for such purpose.
Litigation to Which the University is a Party
This policy applies in the event of filed or reasonably anticipated or foreseeable litigation to which the University is a party or to which one or more University employees acting within the scope of their employment are parties. Hereafter, references in this policy to "litigation to which the University is a party" includes circumstances in which a University employee acting within the scope of employment is a party.
Litigation Hold Notice
Written communication notifying University employees that litigation to which the University is a party has been filed or is reasonably anticipated or foreseeable. The Notice requires recipients to preserve potential evidence in their possession or in the possession of their subordinates.
Any record, document or tangible item that may reasonably be expected to be requested in discovery, used in, or related to litigation to which the University is or may reasonably be a party. Nothing in this policy precludes or alters duties to preserve physical evidence such as models, damaged equipment, and other tangible items.
Any document or recorded information regardless of physical form or characteristics created, sent, organized, received, or otherwise possessed by the University in the course of public business. Records may include, but are not limited to, paper documents, drawings, graphs, charts, videotapes, digital images (still or moving), recordings, photographs, telephone records, data compilations, planners, calendars, diaries, and draft documents.
Physical or tangible evidence may include a wide variety of items. Examples include, but are not limited to, hard copies of records or documents, physical evidence relative to an accident (debris, damaged equipment or vehicles), statements, and test results. The kind of physical evidence that exists depends on the situation.
Records Retention Policy
In absence of reasonably-anticipated litigation, University public records are preserved, retained, destroyed, or disposed in a manner consistent with 90.01 and relevant state and federal law.
Upon receipt of a Litigation Hold Notice, or when litigation is otherwise reasonably anticipated or foreseeable, employees immediately suspend destruction or disposal of records, tangible items and other potential evidence in the litigation. This policy supersedes any provision in 90.01 or other University, college, department, or unit practice that would otherwise authorize destruction or disposal of such potential evidence.
Public Disclosure Policy
This policy sets forth the procedure for preserving records that may relate to reasonably anticipated litigation. Nothing in this policy modifies the policies and procedures for processing public records requests under 90.05 or other records requests such as those made under 90.06 for student education records or 90.07 for personnel records.
OBLIGATION TO PRESERVE
The obligation to preserve potential evidence arises when litigation to which the University is or is reasonably anticipated to become a party has been filed or is reasonably anticipated or foreseeable. Employees are obligated to preserve potential evidence when litigation is reasonably anticipated or foreseeable, regardless of whether the University has issued a Litigation Hold Notice.
Litigation Has Been Filed
When litigation has been filed, the Risk Manager or his or her designee determines which units may hold potential evidence. The Risk Manager or his or her designee issues a Litigation Hold Notice, and proceeds in accordance with this policy, unless a Litigation Hold Notice has been or will imminently be issued by another entity (e.g., the Office of the Attorney General Tort Claims Division). If another entity issues the Notice, the University cooperates with obligations of that Notice.
Litigation is Anticipated or Foreseeable
When the Risk Manager receives information from University employees or other sources that litigation is reasonably anticipated or foreseeable in a matter, the Risk Manager or his or her designee convene a meeting with a representative of the Office of the Attorney General (who provides legal advice) to determine whether a litigation hold notice should be issued. The Risk Manager or his or her designee determines which units and/or individuals may hold potential evidence. The Risk Manager or his or her designee issues a Litigation Hold Notice, and proceeds in accordance with this policy.
A determination of whether litigation is reasonably anticipated or foreseeable is made based on the specific facts and circumstances at issue. The following circumstances are examples of the type of information that may indicate that litigation may be reasonably anticipated or foreseeable:
- Similar past experience or circumstances resulted in litigation;
- Events that occurred resulted in known and significant injury;
- A written complaint was filed or served;
- A complaint was made to an external or internal investigatory agency or unit;
- Notice of claim or potential claims was received;
- An individual or his or her lawyer has made credible threats of suit;
- There have been serious internal discussions among persons familiar with the facts and circumstances regarding potential litigation;
- A claimant has initiated formal dispute resolution procedures;
- Receipt of public records requests similar to those preceding other suits or otherwise indicative of litigation;
- Reliable press or media reports suggest litigation is likely.
Each employee has an obligation to preserve potential evidence in the event that litigation to which the University is a party has been filed or is reasonably anticipated. Employees who believe that litigation to which the University is a party may be reasonably anticipated or foreseeable are to immediately notify their direct supervisor, who notifies the appointing authority and the Risk Manager. If litigation is filed or reasonably anticipated, whether or not a litigation hold notice has issued, employees are to retain ESI in its original (native) format, making all reasonable attempts to preserve metadata associated with each document.
If any vice president and/or appointing authority believe that litigation is reasonably anticipated or foreseeable, he or she is to notify the Risk Manager.
Risk Manager Responsibilities
The responsibilities and authority of the Risk Manager or his or her designee include the following, in consultation with the Litigation Response Team as set forth in this policy and the Office of the Attorney General as needed:
- Directing that retention schedules be suspended so as to preserve records as provided in this policy;
- Coordinating preservation and production advice and practices;
- Identifying the need to engage internal IT personnel or external consultants to preserve existing ESI and ESI created after the Litigation Hold Notice is issued;
- Identifying faculty and staff and/or units likely to have potential evidence;
- Issuing, confirming receipt of, and taking appropriate follow-up action concerning Litigation Hold Notices; and
- Developing written preservation plans if and when appropriate.
- Hold a monthly meeting with the assigned assistant attorney general to review litigation holds, review potential litigation holds, and examine matters that may result in litigation, and locate sources of information.
LITIGATION RESPONSE TEAM
The University maintains a Litigation Response Team that coordinates evidence preservation efforts in response to complex litigation or potentially complex reasonably anticipated litigation to which the University is a party. The Litigation Response Team may add members on an ad hoc basis as appropriate, given the demands of litigation or potential litigation.
The Risk Manager convenes the Litigation Response Team when he or she anticipates that team expertise is needed due to potentially complicated or voluminous preservation of potential evidence. The team also meets on a quarterly basis to review evidence preservation practices, Litigation Hold Notices and related matters.
Members of the Litigation Response Team include:
- Risk Manager,
- Vice President for Information Services and CIO or his or her designee,
- Director of Human Resources or his or her designee,
- Vice Provost for Faculty Affairs or his or her designee,
- Director of Procedures, Records and Forms or his or her designee, and
- WSU Office of the Attorney General Division Chief or his or her designee (ex officio).
The Litigation Response Team may also invite other individuals as appropriate given the circumstances of a particular matter. An assigned assistant attorney general serves as legal advisor to the team.
The responsibilities and authority of the Litigation Response Team include the following:
- Quarterly review of evidence preservation practices, Litigation Hold Notices, and related matters.
- Formulation and management of litigation holds in situations where complicated or voluminous preservation of potential evidence requires team expertise, in the judgment of the Risk Manager. In such cases, the Litigation Response Team is responsible for:
Coordinating preservation and production advice and practices;
Identifying the need to engage internal IT personnel or external consultants to preserve existing ESI and ESI created after the Litigation Hold Notice is issued;
Identifying faculty and staff likely to have potential evidence;
Issuing, confirming receipt of, and taking appropriate follow-up action concerning Litigation Hold Notices; and
Developing written preservation plans if and when appropriate.
WHAT MUST BE PRESERVED
All reasonably identifiable potential evidence must be preserved when litigation to which the University is a party has been filed or is reasonably anticipated or foreseeable. When in doubt, employees should err on the side of preserving potential evidence.
All evidence is to be preserved in as close to its original form as possible. Tangible evidence may not be altered or destroyed when litigation is pending or reasonably anticipated, except with the express written permission of the Risk Manager in consultation with the Office of the Attorney General. ESI must be preserved in its original (native) form.
LITIGATION HOLD NOTICE
A Litigation Hold Notice is formal notification that litigation to which the University is a party has been filed or is reasonably anticipated or foreseeable. The Notice suspends any destruction or disposal of records constituting potential evidence in the matter as well as tangible items constituting potential evidence. The Notice requires recipients to identify the nature and extent of potential evidence they possess.
The Litigation Hold Notice requires the recipient to confirm receipt by returning the attached Potential Evidence Checklist/Verification form, indicating that he or she has:
- Responsive information, identified its forms, and taken steps to preserve the information, as described above in "Employee Obligations" and as instructed in the Litigation Hold Notice; or
- No information responsive to the Litigation Hold Notice; and/or
- Questions regarding the Litigation Hold Notice and need for clarification.
A Potential Evidence Checklist/Verification form is routed with each Litigation Hold Notice.
University personnel are to promptly respond by completing and routing a Potential Evidence Checklist/Verification form as directed.
A University employee in possession of potential evidence is to immediately suspend destruction or disposal of such records or tangible items until notified otherwise by the Litigation Response Team and should notify his or her supervisor.
The Risk Manager or his or her designee follows up with University personnel who indicate they have potential evidence or questions about the process. The Risk Manager or his or her designee assists staff regarding the following:
- Understanding the Litigation Hold Notice and faculty and staff obligations;
- Ascertaining and retaining all reasonably identifiable potential evidence in their possession or under their control;
- Taking appropriate steps to preserve potential evidence until advised it is no longer necessary to do so; and
- Understanding the need to preserve additional new potential evidence created after the Litigation Hold Notice is issued and how to handle such potential evidence.
The Risk Manager or the Litigation Response Team may develop a written preservation plan if and when appropriate. A written preservation plan is an integrated document that maintains the following information:
- Employees who have potential evidence;
- Employee contact information;
- When the Litigation Hold Notice and any Potential Evidence Checklist/Verification forms were sent;
- The time and nature of responses by employees receiving the Litigation Hold Notices;
- The time and nature of follow-up contacts by the Litigation Response Team;
- Other information considered appropriate by the Litigation Response Team.
A written preservation plan is not always required when litigation to which the University is a party has been filed or is reasonably anticipated or foreseeable.
Examples of circumstances that may favor development of a written preservation plan include litigation or reasonably anticipated or foreseeable litigation:
- That may involve a large quantity of University records or other potential evidence;
- In which control over potential evidence resides in multiple locations throughout the University;
- That focuses on University management of records, such as public records litigation; and/or
- In which there is significant risk that potential evidence may be destroyed or disposed absent additional measures.
MANAGEMENT OF LITIGATION HOLDS
The Litigation Response Team at its quarterly meetings reviews existing Litigation Hold Notices to determine whether they should be maintained.
At the time of each review, the Team or designated Team members should consider the circumstances (e.g., current indication of reasonably anticipated or reasonably foreseeable litigation) and determine the need to maintain the litigation hold.
Litigation holds should be removed by notice when litigation is no longer pending or reasonably anticipated or foreseeable. Such notice may occur subsequent to a quarterly meeting of the Litigation Response Team or may occur upon direction of the Risk Manager or his or her designee when facts indicate that litigation is no longer pending or reasonably anticipated/foreseeable. The Risk Manager may use information from Office of Attorney General regarding the status of the case or matter to support this decision.
All recipients of a Litigation Hold Notice should be notified when the litigation hold is removed. After the hold is removed documents preserved under the notice are retained or destroyed in accordance with University records retention schedules.
The Litigation Response Team and/or Risk Manager or his or her designee may take such additional actions warranted by the circumstances. Such actions may include but are not limited to sending out hold notice reminders, conducting preservation compliance checks, and/or addressing questions from University employees.
The Risk Manager or his or her designee in association with the Office of the Attorney General coordinates periodic training regarding preservation of documents and implementation of this policy.