POLICY 08:22:01

LITIGATION HOLD NOTICE

This policy is consistent with TBR Guideline G-075.

Purpose

This guideline is issued to aid Pellissippi State Community College in conjunction with
Tennessee Board of Regents (“TBR”) System in the implementation of a Litigation Hold Notice
Procedure to comply with the Federal Rules of Civil Procedure provisions regarding preservation
of Electronically Stored Information.

Definitions

Electronically Stored Information (“ESI”) – refers to all forms of electronic data and
documents including, but not limited to, metadata, electronic mail, word processing
documents, calendars, voice messages, videos, digital photographs, information in personal
digital assistants (PDA) in any location where data may be stored.
Litigation Hold Procedure – is a process whereby an institution, when sued in federal court
or when reasonably anticipating federal litigation, issues a litigation hold notice
communication suspending the normal operation of paper and electronic document
destruction policies for particular records that are relevant to the federal litigation.
Litigation Hold Notice Letter – is the communication that is distributed to preserve
information and prevent or suspend destruction of paper documents and electronic data that
must be retained during a litigation hold (attached as Exhibit 1).
Records Coordinator – refers to the individual at an institution who has been appointed by
the President to serve as the institution’s Records Coordinator/Official. The Records
Coordinator has the authority and responsibility to dispose of paper and electronic
documents in accordance with approved records disposition authorizations under TBR
Policy 1:12:01:00 Records Retention and Disposal of Records. Prior to the destruction of
any records, the Records Coordinator must determine if the action should be delayed due
to audit or federal litigation hold requirements.
Evidence – refers to hard copy and electronic / digital recordings, videotapes, writings,
material objects, photographs, drawings, diagrams, testimony, or other things presented to
the senses that are offered to prove the existence or nonexistence of a fact.

Policy/Guideline

Introduction
1. 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 the institution has
  notice that the evidence is relevant to pending federal litigation.
2. This guideline explains that TBR Institutions must develop a comprehensive
  written Federal Litigation Hold Notice Procedure (“Litigation Hold Procedure”) to
  retain Electronically Stored Evidence (“ESI”) evidence that is relevant to a federal
  lawsuit as required by the Federal Rules of Civil Procedure.
  1. An institution’s Litigation Hold Procedure must include the components
    described in this guideline pursuant to which the institution intends to
    preserve and retain all evidence, including ESI that is relevant to pending
    federal litigation in order to avoid penalties for non-compliance with the
    Federal Rules of Civil Procedure.
3. The penalties for non-compliance with the federal law regarding electronic
  evidence retention in federal litigation are severe and potentially costly. The
  consequences for an institution could include, but are not limited to:
  1. Monetary sanctions;
  2. Payment of the opposing party’s attorneys’ fees and costs;
  3. Preclusion of the institution’s evidence at trial;
  4. Dismissal of the institution’s claims and counterclaims; and
  5. Default judgments against the institution.
4. Each institution is solely responsible for payment of any monetary sanctions issued
  by the court resulting from the institution’s non-compliance with electronic record
  retention requirements as required by federal law hence the importance of an
  institutional litigation hold procedure.
Litigation Hold Application
1. The Litigation Hold Procedure shall apply to any evidence, paper or electronic
  documents and data or things, maintained by an institution that is relevant to a
  federal lawsuit.
  1. Such evidence shall be preserved and retained by the institution pursuant to
    the provisions of the Litigation Hold Notice until the conclusion of both the
    litigation and the requisite time period after the litigation as outlined in TBR
    Policy 1:12:01:00 Records Retention and Disposal of Records and PSCC
    Policy 08:22:00 Records Retention and Disposal..
  2. Notwithstanding the records retention and disposition schedule outlined in
    TBR policy, upon issuance of a Litigation Hold Notice, institutions must
    suspend routine 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.
  3. This includes, but is not limited to, electronic information at an institution
    work station, on a laptop, in a personal digital assistant, on a CD-rom, at an
    employee’s home, etc.
  4. The retention requirement includes all forms of attorney-client privileged
    and non-attorney-client privileged electronic documents.
    1. 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.
    2. Privileged documents (e.g., attorney-client communications) will
      not be disclosed to the opposing party.
2. The same preservation requirement exists for paper documents such that
  institutions must suspend routine or intentional destruction of paper documents that
  are relevant evidence in a federal lawsuit as outlined in a Litigation Hold Notice.
Purpose of a Litigation Hold Notice
1. There will be instances in which an institution must implement a Litigation Hold
  Notice that requires the retention of certain paper and electronic records for an
  indefinite period of time due to pending federal litigation.
2. A Litigation Hold Procedure is the process whereby an institution, when sued in
  federal court, sends a Litigation Hold Notice suspending the normal operation of
  document destruction policies for particular records that are relevant to the federal
  litigation.
3. Notwithstanding the applicable records retention schedule, documents that are
  subject to a particular Litigation Hold Notice must be retained until the hold is
  removed.
4. The Records Coordinator, or a designee, at an institution is responsible for
  implementing the Litigation Hold Procedure upon notice of the need for a Litigation
  Hold Notice to preserve relevant ESI and paper documents.
5. Identifying instances in which a Litigation Hold Notice is required and its
  subsequent implementation requires collaboration of multiple individuals at the
  institution, including the institution’s Legal Counsel.
6. The Litigation Hold Notice Procedure that results in the issuance of a Litigation
  Hold Notice Letter is outlined in this section. The implementation of an institutional
  Litigation Hold Notice requires adherence to the procedure outlined in this
  guideline or an alternative process established at an institution that includes the
  components of the procedure outlined in this guideline.
Institution’s Notification of Federal Litigation
1. Responsible Party: All Employees
  1. All employees have an affirmative duty to inform the institution’s Records
    Coordinator when they receive official notification of federal litigation
    against the institution.
2. Official Notice Federal Litigation
  1. Employees are considered to be in receipt of official notice of federal
    litigation when they receive a complaint, summons, and/or other official
    documents related to a federal lawsuit.
3. Employee’s Notification of Federal Litigation to Records Coordinator
  1. Responsible Party: All Employees
    1. Based on the factors outlined in Section IV. B. of this guideline,
      employees who have official notice of 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.
4. Records Coordinator’s Issuance of Litigation Hold Notice Letter
  1. Responsible Party: Records Coordinator
    1. In consultation with and under the direction of Legal Counsel, the
      institution’s Records Coordinator, or designee, will issue an Official
      Litigation Hold Notice Letter regarding the matter to the appropriate
      individuals within five (5) business days of receipt of notification of
      pending federal litigation.
    2. The Litigation Hold Notice Letter must state the categories of
      electronic and paper documents, including ESI, that must be
      retained until further notice and that 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.
      1. It is not sufficient to retain only a paper copy of ESI. A
        Model Litigation Hold Notice Letter is attached to this
        guideline as Exhibit 1.
      2. Institutions must consult with Legal Counsel prior to issuing
        a Litigation Hold Notice Letter.
5. Employees’ Compliance with the Litigation Hold Notice Letter
  1. Responsible Party: Employee recipients of the litigation hold notice
    1. In response to an official Litigation Hold Notice Letter issued by the
      institution’s Records Coordinator, or designee, all individuals who
      receive the notice must compile paper and electronic documents and
      data (including e-mails, voicemails, videos, etc.) as instructed in the
      notice letter.
    2. 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.).
    3. It is not sufficient to print paper copies of electronic records as they
      must be maintained in their original electronic format.
    4. 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.
Assessment of the Litigations Hold Notice
1. The Records Coordinator, in conjunction with the appropriate administrators and
  Legal Counsel, shall assess the effectiveness of the institution’s Litigation Hold
  Notice Procedure on a periodic basis, as deemed necessary by the institution.
2. The Records Coordinator shall make certain that necessary revisions to the
  Litigation Hold Notice Procedure are made at the time of the review to address any
  changes in the institutional organization that may affect the implementation and
  effectiveness of the Procedure.
Publication of the Litigation Hold Notice Procedure
1. To promote uniform compliance with the Litigation Hold Procedures by all
  personnel employed by an institution and to achieve TBR institutions’ duty to
  preserve and retain relevant paper and electronic evidence in federal litigation,
  institutions shall, at a minimum, display and distribute its Litigation Hold Notice
  Procedure, or this Guideline in the absence of an institutional Procedure in
  accordance with the standard distribution methods.
2. The institution’s current Litigation Hold Notice Procedure or, in the absence of an
  institutional procedure, this Guideline, shall be available upon request for review
  and copy at all times during normal business hours.

Sources:
TBR Guideline G-075; T.C.A. § 49-8-203; Federal Rules of Civil Procedure

Approved by TBR November 6, 2007
Reviewed/Recommended: President’s Council, August 28, 2023
Approved: President L. Anthony Wise, Jr., August 28, 2023