Laura A. Dunek
Associate System Legal Counsel
Regent Records Policy Advisor
Office of General Counsel
University of Wisconsin System
(608) 262-0747
[email protected]

Litigation: Properly identify, hold, and manage
electronically-stored information.

Records Management: Successfully manage
email and other forms of business
communication.

FRCP governs what information you need to produce
when you are involved in litigation.

“Discovery” in litigation refers to disclosure of
documents and other information relevant to a legal
claim.

“Discoverable” information is anything that would
reasonably lead to admissible evidence at trial.

RULES, COMMITTEE NOTES, AND
COMMENTARY AT: www.uscourts.gov
 How
would you define the mighty
phrase?
“Electronically-stored Information”

Rule 34(a) Comment:
As originally adopted, Rule 34 focused on
discovery of “documents” and “things.” But
it has become increasingly difficult to say
that all forms of electronically stored
information, many dynamic in nature fit
within the traditional concept of a
“document.”

Rule 34(a) is amended to confirm that discovery of
electronically stored information stands on equal
footing with discovery of paper documents.

Rule 34(a) is expansive and includes any type of
information that is stored electronically.

Rule 34(a) Comment:
The rule covers—either as documents or as
electronically stored information—information
stored in any medium, to encompass future
developments in computer technology.
Rule 34(a) is intended to be broad enough to cover
all current types of computer-based information, and
flexible enough to encompass future changes and
developments.

Rule 34 encompasses everything:
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Email and text messages
Voicemail
Backup tapes
Metadata
Logs
Fragments of deleted documents
Multiple copies of the same document/email
Home computers and personal tools of
technology, such as cell phones and Blackberrys
Rule 16: Pre-trial procedure and case
management
 Rule 26: General duty of disclosure
 Rule 33: Questions to parties
 Rule 45: Subpoenas

EARLY ATTENTION TO ELECTRONIC
DISCOVERY: RULES 16 AND 26(f), FORM 35

Rule 16(b)(5): The scheduling order shall issue within 90
days after the appearance of a defendant or within 120
days after the complaint has been served on a defendant.

The scheduling order may include “provisions for
disclosure or discovery of electronically stored
information.”
Rule 26: Inventory of Electronic Records is
the First Step in the Litigation Process:
Unless otherwise exempted, a party must
provide to other parties a copy of, or a
description by category and location of, all
documents, electronically stored information,
and tangible things that are in the possession,
custody, or control of the party and that the
disclosing party may use to support its claims or
defenses, unless solely for impeachment.

Rule 26: General Provisions Governing
Discovery. Parties are required to develop a
discovery plan concerning any issues relating to
the disclosure or discovery of electronically
stored information, including the form or forms
in which it should be produced.

Rule 34: The responding party must identify, by
category or type, the sources containing
potentially responsive information that it is either
searching nor producing. The identification
should provide enough detail to enable the
requesting party to evaluate the burdens and costs
of providing the discovery and the likelihood of
finding responsive information on the identified
sources.

Rule 34: A party’s identification of sources of
electronically stored information as not
reasonably accessible does not relieve the party
of its common-law or statutory duties to preserve
evidence. A party my be required to preserve
unsearched sources of information in some cases.
RULE 26(b)(2): REASONABLY ACCESSIBLE
INFORMATION; BETTER MANAGEMENT OF
ELECTRONIC DISCOVERY
 This rule places limitations on discovery of electronically
stored information that the party identifies as not reasonably
accessible because of undue burden or cost.

Even if the party makes a showing of undue burden or cost,
the court may order discovery if the requesting party shows
good cause—a balancing of costs and benefits.

Committee Note sets forth a seven prong balancing test, and
suggests that sampling may be helpful in some cases.
Early and ongoing involvement of information
technology professionals is essential for success.
Format is of paramount concern.
Duplicative records and storage costs are of
paramount concern.

When party “reasonably anticipates litigation,” it
must suspend its routine document
retention/destruction practices and implement
“litigation hold.”
When a complaint or court order is served
 When litigation is “reasonably foreseeable”?
Factors:
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Major accident or injury occurs
Police report filed
Claim is filed with administrative agency
Employee is fired
Claimant threatens litigation
1. Issue a litigation hold.
2. Identify Affected Employees and Develop Action Plan.
3. Monitor the Process and Seek Release of Duplicative
Evidence.
4. Create Separate Drive for Evidence.
5. Terminate Litigation Hold.

Review Five Step Process Developed for UW
System.

Sample Letter
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Identify claimant and nature of claim.
Remind employees of their legal duty to preserve
relevant ESI.
Identify the team that is managing the situation.
Direct employees to suspend deletion, overwriting
and destruction of relevant ESI.
Direct employees to preserve new relevant ESI.
Preserve all hard copies.

Sample Request Letter

Supporting Inventory
Before litigation occurs, how
do we manage it all?

 Lack
of Guidance Results in:
› Misuse of Business Tools
› Needless Retention of electronically
stored information
 Employees
Engage in Inappropriate
Communication
Washington Post, June 19, 2007
 White House aides made extensive use of
political e-mail accounts for official government
business, despite rules requiring that they
conduct such business through official
communications channels, according to new
evidence disclosed yesterday by congressional
investigators.

(CNN) -- Detroit Mayor Kwame
Kilpatrick exchanged nearly 14,000 text
messages regarding his extramariatl
affair with his Chief of Staff, Christine
Beatty, on her city-issued pager.
 "I'm madly in love with you," the married
Kilpatrick wrote on October 3, 2002. Beatty
replied, "I hope you feel that way for a long
time."

Records Management Policy.

Employee Training. Must not only inform but
also provide tools, so employees can successfully
comply with the policy.

Compliance Review. Supervisory review,
compliance audits, and/or automatically log
employee activities.
Key Leaders within the Organization
 IT Personnel
 Records Officers
 Lawyers
 Auditors
 Finance Officers
 Human Resources


Public institutions have legal requirements,
which are not applicable in the public sector.

Hence, a records management policy must
comply with myriad legal requirements.

State of Wisconsin Statutes set forth legal
requirements for management and public release
of public records.
What
is a “public record”?

Public records include all materials, regardless of
physical form or characteristics, made or
received by any state agency in connection with
the transaction of public business.

“Record” means any material regardless of
physical form or characteristics, which has been
created or is being kept by an authority and upon
which written, drawn, printed, spoken, visual or
electromagnetic information is recorded or
preserved.

State of Wisconsin Regulations set forth legal
requirements for electronic records.
Adm 12.02 Purpose. The purpose of this chapter
is to ensure that public records in electronic
format are preserved and maintained and remain
accessible for their designated retention period.
Adm 12.05 Provisions. State and local agencies
shall comply with all statutes and rules relating to
public records. With regard to public records stored
exclusively in electronic format, state and local
agencies shall do all of the following:
 (1) Maintain electronic public records that are
accessible, accurate, authentic, reliable, legible, and
readable throughout the record life cycle.


All public records made or received by or in the
custody of a state agency shall be and remain the
property of the state. Those public records may not
be disposed of without the written approval of the
board. Wis. Stats. § 16.61(4)(a)

The State of Wisconsin Public Records Board
shall safeguard the legal, financial, and historical
interests of the state in public records. Wis.
Stats. § 16.61(3)(a)

University of Wisconsin System Public Records
Management

University of Wisconsin employees now
have the legal authority to classify, manage,
and destroy public records.

How would you define the term: Business
Communication?

Communication that is memorialized in any format
and related to the transaction of public business.

Two Categories:
1. Business Communication: Transitory
2. Business Communication: Routine
Directly connected to the transaction of public
business, but of minimal, short-term business
value.
 Replaces in-person conversation.
 Can be memorialized using many different types
of business tools, including email, voicemail, and
text messages.

(1) Communication that is not the basis for
official action, such as holiday notices,
charity and welfare appeals, or
information about workplace events.
(2) Scheduling information pertaining to an
event that has already occurred.
(3) Courtesy copies that do not require
responsive action by the employee who
receives the communication.
(4) Reference materials that are created or
received from a distribution list, listserv, or
other resource provider.
(5) A draft version of a document that has been
shared for review among colleagues, after the
draft has been superseded by a successive
version of the document
(6) Scheduling information pertaining to an
event that has already occurred.
(7) Requests for information or materials to
which a university employee can easily
reply, without performing special
research, engaging administrative
processes, or seeking supervisory review.

Analyze the Following Examples: How does
each example fit within the definition of
transitory communication?

Retain for seven days after the transitory
communication is created or received.

Or delete the transitory communication when
obsolete because it has been superseded or the
related event has transpired.

If a communication has ongoing value, then
retain it for as long as you need it as a business
resource.

Retain transitory communications until you can
accurately classify them.

Directly connected to the transaction of business
performed by employees.

Comprises the normal communication that occurs
between team members working to complete
projects.

Includes attachments to the communication.

Can be memorialized using many different types
of business tools.
(1) Employees in different physical locations
discuss and perform routine aspects of
business activities;
(2) Employees administer routine facets of a
university activity or business project; or
(3) Employees disseminate to their colleagues
routine materials related to a business
project.

Analyze the Following Examples: How does
each example fit within the definition of routine
communication?

Retain for six months after a business project is
completed.

If a communication has ongoing value, then
retain it until you no longer need it as a business
resource.

Retain business communications until you can
accurately classify them as either routine or
transitory.

Desktop Webcasts:
› http://www.uwex.edu/ics/webcast/

Employee Training at UW Campuses: Developed
and led by Records Officers at each campus.

Records Management Resources for all UW
employees: Online and sponsored by UW
System.
› http://www.uwsa.edu/gc-off/records/
۩ Internal Audits of employee email accounts
performed by Information Services on a
quarterly basis.
۩ Management team reviews audit results and
oversees employee compliance.
Folders
 Sub-folders
 Retention Policy
 Store off-line

Entire content of the message, including entire
chain of communication from previous
authors.
 Include all Attachments
 Complete Metadata:
Date:
To:
From:
Subject:

Professional tone
 Related to the business of the University
 Before pressing the “send” button, scrutinize the
content of your email messages.
 Any business communication could be printed in
a news story, read on air by a reporter, or posted
on the web.
