VISC Litigation Hold Guideline
VISC Litigation Hold Guideline
REVISION CONTROL
Document Title:
VISC Litigation Hold Guideline
Author:
VISC Document Committee
File Reference:
InfoSec Standard Template_Numbered Headings.docx
Revision History
Revision Date
Revised By
Summary of Revisions
Section(s) Revised
10/26/2011
Sylvia Barnes
Redraft entire document to align with new format,
CSU standard and NIST.
All Sections
11/28/2011
Sylvia Barnes
Add flow diagram to appendix
Appendix A added
Review / Approval History
Review Date
Reviewed By
Action (Reviewed, Recommended or Approved)
11/28/2011
VISC-Document
Group
Reviewed, Recommended to VISC
02/07/2012
VISC Governance
Approved
Last Revised: 11/16/11
Guideline # 8075.000.G12.9
Page ii
VISC Litigation Hold Guideline
Table of Contents
Page
VISC Litigation Hold Guideline ................................................................................................................................... 1
1.0
2.0
LITIGATION HOLD GUIDELINE ...................................................................................................................... 4
1.2
Introduction ............................................................................................................................................. 4
1.3
Purpose ................................................................................................................................................... 4
1.4
Scope ...................................................................................................................................................... 4
CAMPUS LITIGATION HOLD RESPONSIBILITIES ........................................................................................ 4
Responding to Litigation Holds ............................................................................................................... 5
3.0
2.1.1
Resonably Forseeable ............................................................................................................... 5
2.1.2
Document Destruction................................................................................................................ 5
IMPLEMENTATING LITIGATION HOLDS ....................................................................................................... 6
3.1
Determination of Relevant Sources of Electronic Information ................................................................ 7
3.2
Litigateion Hold Process Flow ................................................................................................................. 7
4.0
FAILURE TO IMPLEMENT LITIGATION HOLD CONSEQUENCES ............................................................... 7
5.0
RELEASE OF A LITIGATION HOLD ................................................................................................................ 7
6.0
DEFINITIONS ................................................................................................................................................... 7
7.0
REFERENCES ................................................................................................................................................. 8
8.0
APPENDIX A: SAMPLE LITIGATION HOLD REQUEST ................................................................................ 9
9.0
APPENDIX B: SAMPLE LITIGATION HOLD TO TECHNICAL ADMINISTRATORS ................................... 10
10.0 APPENDIX C: LITIGATION HOLD PROCESS FLOW .................................................................................. 11
Last Revised: 11/16/11
Guideline # 8075.000.G12.9
Page iii
VISC Litigation Hold Guideline
1.0
LITIGATION HOLD GUIDELINE
1.2
Introduction
This guideline was developed to support the California State University Polices, government regulations and legal
responsibilities when responding to litigation hold requests. The Federal Rules of Civil Procedure (FRCP) regulate
the discovery of electronically stored information (ESI), provide a framework for conducting electronic discovery,
requires litigants to identify, preserve, and recommend collecting ESI very early in a case. The law has long
required all parties to preserve evidence that may be relevant to a dispute, even before a lawsuit is
filed. Because much communication is now electronic, the courts have adapted the requirement to preserve
evidence specifically to apply to electronic information. The courts have also ruled that the doctrine of “litigation
hold” applies equally to electronic and hard copy information.
1.3
Purpose
It is the responsibility of a campus to respond to litigation holds by securing the information requested to the best
of their ability. This guideline provides support for the implementation of processes that offer best efforts in
information preservation for the response to litigation holds. The following litigation hold guideline is designed to
supplement the California State University Policy 8075.S01 draft which addresses evidence collection and
handling. To provide guidance for a California State University in developing processes around handling requests
for litigation holds.
1.4
Scope
The courts have ruled that the doctrine of “litigation hold” applies equally to electronic and hard copy information.
A campus will need to define processes and resources, and “Key Players” to comply with litigation holds. The
“Key Players” will be the variable in this process depending on the litigation hold request. It is reasonable to
expect that a campus will need to be prepared for a litigation hold request. The campus working in conjunction
with legal counsel or a representative will need to identify all staff and employees who may have knowledge of the
underlying circumstances for the litigation. These employees are known as “Key Players” and the information they
have must be preserved. The scope is defined by the litigation hold request and the process and resources will
implement and monitor the litigation hold request.
2.0
CAMPUS LITIGATION HOLD RESPONSIBILITIES
The campus should be prepared to respond to a litigation hold. The campus will need to develop a process for
responding to litigation and implementing litigation holds. The campus should have a decision-making process to
determine whether litigation is reasonably foreseeable. University Counsel should be consulted as to the
likelihood of litigation, but the ultimate decision should be made by campus personnel. It is best to document the
outcome of every decision, particularly those where a decision is reached not to implement a litigation hold. At a
minimum, the campus will need to implement a plan that describes the campus’ process regarding the use of
forensic resources (either internal or through external arrangements) and its criteria for responding to litigation
hold requests.
Last Revised: 11/16/11
Guideline # 8075.000.G12.9
Page 4 of 11
VISC Litigation Hold Guideline
Responding to Litigation Holds
If a campus chooses to maintain its own forensic capability, the campus must maintain procedures and processes
for ensuring that evidence and/or information collected under circumstances such as a litigation hold, or Public
Information Act request is collected, documented and stored in a manner consistent with legal requirements as
appropriate.
The courts require a party to preserve evidence – i.e., implement a litigation hold on information likely to become
relevant in a dispute -- in the following circumstances:
2.1.1

When a demand to preserve evidence is received, whether litigation is filed or not

When litigation is served

When a court issues a preservation order

When litigation is “reasonably foreseeable”
Resonably Forseeable
The determination of whether to implement a hold requires the exercise of judgment. Disputes do not
always result in litigation. There is a duty to preserve evidence only when the problem is not likely to be
independently resolved. The following list illustrates situations where litigation may be reasonably
foreseeable. Each situation must be evaluated on a case-by-case basis:
2.1.2

Where there is a major accident or injury

When a police report is filed

When a claim is filed with a government agency

When a third party seeks indemnification

When an employee is terminated

When an independent investigation corroborates a claim

When there are multiple claims about the same set of circumstances

When a whistleblower or whistleblower retaliation claim is filed

When a claimant threatens litigation

When CSU plans to file suit
Document Destruction
When a litigation hold is required, the destruction of stale documents and information under a document
retention schedule must be suspended. The value, nature or scope of the dispute is irrelevant to the
requirement of a litigation hold.
Last Revised: 11/16/11
Guideline # 8075.000.G12.9
Page 5 of 11
VISC Litigation Hold Guideline
3.0
IMPLEMENTATING LITIGATION HOLDS
In order to effectively manage the preservation of information either hardcopy or electronic, a team should be
designated by the campus. This team may include representatives from the unit where the principal documents
reside, IT, VISC, Risk Management, Human Resources, and in some cases, University Counsel. As required by
law, the team must take steps to ensure that all appropriate documents for the particular dispute are identified and
preserved. Guidelines for litigation hold evidence collection are as follows:
1) Assemble the team that will coordinate the litigation hold. Make sure to document the initiation of the
process including the litigation hold request.
2) Identify the “Key Players” that will need to be contacted for the information hold.
3) Identify and preserve information/documents that are centrally located.
4) Communicate with “Key Players” and other employees who might have relevant information at their
own personal work stations. (A sample letter advising employees of their responsibility to implement
the litigation hold is attached.)
5) When collecting data, remember to document all steps taken to identify and secure the information
falling under the scope of the litigation hold. This documentation will need to include all steps taken
during the collection stage, any policies or procedures followed by your department that affected your
ability to collect the requested information and how you secured the collected data.
6) Electronic information should be preserved in the form in which it was created, including metadata, or
electronic information that is imbedded within the communication but not visible on its face. The
information to be considered for retrieval include:

Hard copy

E-mail

Computer hard drives

Network servers

Back-up tapes

Personal Data Assistants

Voice messages

Videos and photographs
The hold applies to information in existence at the time that the hold is implemented, and any new information that
is generated after that time and until the hold is released. In a dispute of longer duration, reminders that a
litigation hold is still in place and its requirements should be periodically re-issued.
Last Revised: 11/16/11
Guideline # 8075.000.G12.9
Page 6 of 11
VISC Litigation Hold Guideline
3.1
Determination of Relevant Sources of Electronic Information
A representative of the campus legal counsel or a representative will need to meet with a representative of the
University Information Security team or system representatives to determine all possible sources of relevant
electronic information to the litigation as it relates to “Key Players.” The meeting should address all sources of
information, the specific form the information is in (hard-copy, tapes, etc.), the accessibility and cost of retrieving
the information, location of records, the actions which need to be taken to secure and preserve the records, and
how the sources can be searched.
3.2
Litigateion Hold Process Flow
Appendix C is a sample flow diagram of the litigation hold process. Appendix C will take you through the
technical processes of the litigation hold request giving you an overview of the communication channels of that
the request will need to travel.
4.0
FAILURE TO IMPLEMENT LITIGATION HOLD CONSEQUENCES
The courts have imposed sanctions on parties from whom information is sought and who fail to appropriately
implement a litigation hold:
5.0

Sanctions, including attorneys’ fees and costs

Preclusion from introducing evidence at trial

Instructions to the jury to draw an adverse inference from unavailable evidence

Dismissal or default judgment
RELEASE OF A LITIGATION HOLD
When the dispute is resolved, or it becomes clear that litigation is no longer likely to occur, the team should
communicate with all who have been asked to preserve information and release them from the obligation to retain
information.
6.0
DEFINITIONS
Electronically Stored Information (ESI) - Files or other data that are stored on computers, file servers, disks, tape
or other devices or media.
Federal Rules of Civil Procedure (FRCP) - are a body of procedural rules which govern all civil actions in U.S.
District Courts. There rules were promulgated by the U.S. Supreme Court in 1938 under power granted by
Congress, and amended many times since their enactment. Most states have modeled their own rules of civil
procedure from the Federal Rules of Civil Procedure.
Last Revised: 11/16/11
Guideline # 8075.000.G12.9
Page 7 of 11
VISC Litigation Hold Guideline
7.0
REFERENCES
CSU OGC Litigation Holds Guidelines Draft
CSUF Litigation Hold Standards
Federal Rules for Civil Procedure (FRCP)
8075.S01 Information Security Incident Management (draft)
Last Revised: 11/16/11
Guideline # 8075.000.G12.9
Page 8 of 11
VISC Litigation Hold Guideline
8.0
APPENDIX A: SAMPLE LITIGATION HOLD REQUEST
Attention Cal State Technical Staff Member,
You have recently been notified of a litigation hold which affects several Cal State University Faculty
members, Administrators and Staff. In accordance with the requirements involving the preservation of
data, the Preservation Team has been requested to take the lead in identifying and preserving any and
all campus information that pertains to the pending lawsuit.
You have been notified because the Preservation Team managing the collection and preservation of
data has identified you as a resource that has access to information falling under the litigation hold
umbrella. During the collection and preservation of this information, it is imperative that you handle all
systems and data produced in a confidential and secure manner.
Prior to collection, all procedures for collecting and securing the information should be vetted by the
Preservation Team to ensure that systematic and forensically sound methods are being used. When
collecting data, please remember to document all steps taken to identify and secure the information
falling under the scope of the litigation hold. This documentation must include all steps taken during the
collection stage, any policies or procedures followed by your department that affected your ability to
collect the requested information and how you secured the collected data. This documentation must be
provided to the Preservation Team once the data has been collected and secured. As a participant in
the collection of this information, you are required to maintain confidentiality of all information, if the
press contacts you direct them to your Preservation Team contact. Additionally, you must stop any
auto delete scripts, processes or utilities that may affect any information falling under the litigation hold.
Finally, you should prepare for further requests for information preservation. Access to the collected
information is limited to authorized individuals approved by the Preservation Team.
The Preservation Team that is managing this request for data/information is available to further explain
your obligations or respond to any questions you may have about this litigation hold. The Team Lead is
John Doe can be reached at 800-555-1212.
Sincerely,
Last Revised: 11/16/11
Guideline # 8075.000.G12.9
Page 9 of 11
VISC Litigation Hold Guideline
9.0
APPENDIX B: SAMPLE LITIGATION HOLD TO TECHNICAL ADMINISTRATORS
Attention Information Technology Technical Staff Members,
During the course of your work duties you may be called upon to assist in the collection and
preservation of information pertinent to either a pending or actual legal process. This collection is
commonly referred to as litigation hold, which can affect and member of the campus community. In
accordance with the requirements revolving around the preservation of electronic data, the Information
Security Office (ISO) or designee has been tasked to lead in identifying and preserving any and all
campus information that pertains to pending legal issues.
You may be notified because the team managing the collection and preservation of electronic data has
identified you as a staff resource that has access to or responsibility for managing resources housing or
processing information falling under the litigation hold umbrella. During the collection and preservation
of this information, it is imperative that you handle all systems, data and information in a confidential
and secure manner.
Prior to collection, all procedures for collecting and securing the information must be vetted with the
Information Security Office or designee to ensure that systematic and forensically sound methods are
being used. When collecting data, please remember to document all steps taken to identify and secure
the information falling under the scope of the litigation hold. This documentation must include all steps
taken during the collection stage, any policies or procedures followed by your department that affected
your ability to collect the requested information and how you secured the collected data. This
documentation must be provided to the Information Security Office once the data has been collected
and secured. As a participant in the collection of this information, you are required to maintain
confidentiality of all information, if contacted or asked about this process, you should direct questions to
the campus legal counsel’s office.
Additionally, you must stop any auto delete scripts, processes or utilities that may affect any information
falling under the litigation hold. Finally, you should prepare for further requests for information
preservation. Access to the collected information is limited to authorized individuals approved by
University Counsel or designee.
The team that is managing the litigation hold can be available to meet with you to further explain your
obligations or respond to any questions you may have about this litigation hold process.
Sincerely,
Last Revised: 11/16/11
Guideline # 8075.000.G12.9
Page 10 of 11
VISC Litigation Hold Guideline
10.0
APPENDIX C: LITIGATION HOLD PROCESS FLOW
APPENDIX: C
Litigation
Request
Generated
Public
Wireless
Network
Campus
Legal
Step 1
Notify
Step 1
Notify
Department
FileServers
External
Media
Information
Security
Officer
Step 2
Survey
For
Media Source
Campus
Individuals
Litigation
Hold
Request
Received
From
Campus
Legal
Step 2
Remote
Collect
`
Step 3
Flag User Record
Flag User
HelpDesk
Record
Of
Hold
IT
Rollout
Set
Email
To
NoDelete
IT
HelpDesk
Remote
Image
Drive
And
Collect
Email
Secure
Data
SAN
IT
ISO Staff
IT
Internet
Services
Step 4
Email
Archiving
Secure
Backup
SAN
Content
Management
EMAIL
1U
Last Revised: 11/16/11
Guideline # 8075.000.G12.9
Backup Tape
Page 11 of 11