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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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

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