125  Litigation Holds

Approved by President
Effective Date: June 5, 2017
Responsible Division: President
Responsible Office:  Office of the University Counsel
Responsible Officer:  University Counsel

I. Purpose

Federal and state law require parties to a lawsuit, or parties who reasonably anticipate that litigation may occur, to preserve electronic data, documents, and other evidence pertaining to the lawsuit in compliance with the Federal Rules of Civil Procedure and any applicable state rules of civil procedure. This policy is enacted to comply with the Tennessee and Federal Rules of Civil Procedure provisions regarding preservation of electronically stored information.

There is a legal duty to preserve evidence, including electronic documents, when the institution has notice that the evidence is relevant to pending litigation. In addition, Middle Tennessee State University (MTSU or University) has a duty to preserve such evidence before litigation is filed, if it reasonably anticipates that litigation may occur. The penalties for non-compliance with record retention preservation requirements are severe and potentially costly. The consequences for MTSU could include, but are not limited to, monetary sanctions, payment of the opposing party’s attorneys’ fees and costs, preclusion of MTSU’s evidence at trial, dismissal of MTSU’s claims and counterclaims, and default judgments against MTSU.

II. Scope

This policy applies to any evidence, paper or electronic documents, and data or things maintained by MTSU that are relevant to litigation that is either currently pending or reasonably anticipated.

III. Definitions

As used in this policy, the following terms shall mean:

A.  Electronically Stored Information (ESI). All forms of electronic data including, but not limited to, metadata, electronic mail, word processing documents, calendars, voice messages, videos, or digital photographs in any location where data may be stored.

B.  Litigation Hold Notice Letter. The communication that is distributed with instructions to preserve information and prevent or suspend destruction of paper documents and electronic data that must be retained during a litigation hold.

C.  Evidence. Hard copy and electronic/digital recordings, videotapes, writings, material objects, photographs, drawings, diagrams, testimony, or other things that are offered to prove the existence or nonexistence of a fact.

IV. Duty to Preserve

All employees have an affirmative duty to inform the Office of the University Counsel when they receive official notification of litigation against MTSU such as a complaint, summons, and/or other official documents related to a lawsuit. Further, all employees have an affirmative duty to inform the Office of the University Counsel if he/she reasonably anticipates that litigation may be brought against MTSU at some date in the future. Notice should be provided to the Office of the University Counsel, in writing, within two (2) business days of the employee becoming aware of the litigation or the potential for litigation.

Upon receipt of notice of actual or reasonably anticipated litigation, the Office of the University Counsel will issue an official Litigation Hold Notice Letter regarding the matter to the appropriate individuals within five (5) business days of receipt of notification. The Litigation Hold Notice Letter must state the categories of electronic and paper documents, including ESI, that must be retained until further notice. Electronic information must be preserved in its original electronic form so that all information contained within it, whether visible or not, is also available for inspection. It is not sufficient to retain only a paper copy of ESI.

All evidence preserved and retained by MTSU pursuant to the provisions of this policy and any Litigation Hold Notice shall be maintained until the conclusion of both the litigation and the requisite time period after the litigation as outlined in Policy 129 Records Retention and Disposal of Records. 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.

Notwithstanding any records retention and disposition schedule to the contrary, upon issuance of a Litigation Hold Notice, all persons in control of documents specified in the notice must suspend routine purging, overwriting, re-using, deleting, or any other destruction of electronic information identified in the notice wherever it is stored. This includes, but is not limited to, electronic information at an individual work station, on a laptop, in a personal digital assistant or smartphone, on a CD-Rom, at an employee’s home, etc. The retention requirement includes all forms of attorney-client privileged and non-attorney-client privileged electronic documents. 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 (i.e., attorney-client communications) will not be disclosed to the opposing party.

The same preservation requirement exists for paper documents such that MTSU must suspend routine or intentional destruction of paper documents that are relevant evidence in a lawsuit as outlined in a Litigation Hold Notice.

Forms: none.

Revisions: none.

References: Federal Rules of Civil Procedure; Policy 129 Records Retention and Disposal of Records.