Office of Counsel
Bill Woodward
X6633
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The Discovery Process Serves the Purposes of:
◦ 1. Expediting the litigation by:
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a) Identifying and narrowing issues.
b) Uncovering facts
c) Preserving evidence for trial.
d) Expediting trial preparation by committing parties
or witnesses to particular versions of facts.
◦ 2. Encouraging Settlement by:
 a) Educating the parties as to the strengths and
weaknesses of their respective cases
 b) Exposing doubtful claims or defenses.
 c) Providing information for informed case evaluation.
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Obligation to preserve relevant paper
documents which could be admissible as
evidence or lead to admissible evidence
Spoliation prohibited
◦ Enron shredders
◦ Iran/Contra email back up of White House e-mail
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Principles of paper discovery have been
extended to electronically stored information
(Electronic Data)
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Identify all past and current users known to you who have generated e-mail
related to the subject matter(s) of this litigation
Identify all e-mail known to you that relates to, references or is relevant to
the subject matter of this litigation, including but not limited to, date,
recipient(s) and authors
State whether any computer hardware has been upgraded during the relevant
time period of this litigation, and describe the type of upgrade and whether
the replaced parts were retained
Identify any hard drives that were erased or reformatted for new users during
the relevant time period of this litigation, and whether they are backed up
before the new user receives the computer
If the hard drive of any server, workstation, notebook/laptop/desktop PC (for
home or work use), or any storage device or media, has been “wiped clean”
or reformatted so that the information on the hard drive, storage device, or
media is permanently destroyed, please provide: the date on which each
drive was “wiped clean” and the method or program used (e.g., WipeDisk,
WipeFile, BurnIt, Data Eraser, etc.
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For each of the individuals listed below, identify their communications
capability during the relevant time period of this litigation, including, but not
limited to: terminal to mainframe emulation, data download and/or upload
capability to mainframe, and computer to computer connections via a
network, modem and/or direct connection of any desktop or laptop
computers, PDAs, cellular phones and voice mail equipment. Please include
information on any of the above-mentioned individuals if any of these
devices are used at home for business purposes
Identify any users who had backup systems for/with their laptop or desktop
computers, including personal equipment used for business purposes, and
describe the nature of the backup
Provide copies of all documents which constitute, refer or relate to any past
or electronic communications systems, including but not limited to: e-mail,
voice mail, text messaging and instant messaging, used during the relevant
time period of this litigation
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Suit has been filed
Subpoena has been received
Suit can reasonably be anticipated
◦ Reasonable anticipation of litigation arises when an
organization is on notice of a credible threat it will
become involved in litigation or anticipates taking
action to initiate litigation [Sedona Conference]
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Office of Counsel will make the determination
◦ If you have reason to believe a suit will be filed,
please contact John, Bob, or me at x6633.
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Meeting of administrators, IT
representative(s), and Office of Counsel to
discuss pending/anticipated litigation
Litigation Hold Letter following the meeting
Periodic reminders
Possible expansions of scope of preservation
effort
Notice when obligation to preserve is over
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Both office and home computers that are
used to perform work related functions
Off-campus storage of electronic data
“Cloud” storage/online applications
containing electronic data, such as Google
Docs
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Hard Drives (internal and external)
CDs and DVDs
“Thumb” Drives
Tape Drives
PDAs, Smart Phones (iPhone)
Voice Mail Recordings
Answering Machine Messages
Video/Audio Cassettes
Digital Photographs
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Word Processor Files (.doc, .docx,.rtf)
Spread Sheets (.xls, .xlsx)
Portable Document Files (.pdf)
Electronic Calendar
Data Bases
Saved IM Conversations
Twitter Conversations
E-Mail Messages
SavedText Messages
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User must
◦ Avoid deleting relevant files
◦ Avoid formatting a hard drive containing relevant files
◦ Avoid selling/disposing of a personally owned computer
containing relevant information
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In some cases, IT will copy your hard drive, remove
the hard drive, install the copy into your computer
and submit the original hard drive to the Office of
Counsel to be placed in locked storage cabinet.
Technical assistance available from IT, John
Stanton, x 2626
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No
Information subject to a claim of privilege will
not be turned over without court order
Personal information that is not relevant will
not be turned over
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Computer is replaced with a new one
Computer hard drive shows signs of failure
and needs to be replaced
Computer needs to have hard drive reformatted and operating system (Windows)
reinstalled
Computer is being “surplus-ed”
Re-usable backup media (i.e., tapes) are
scheduled to be erased and re-used
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Imposition of a fine on the University
Instruction to jury to assume allegations to
which “missing information” pertains are true
Not allowing testimony by University official
who has “lost” relevant information
Directed verdict for other side
Adverse personnel action against staff/faculty
member for disregarding preservation
obligations once put on notice
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Always assume that e-mail will be printed
on the front page of tomorrow’s newspaper
◦ Misdirected
 Typo
 Auto-completion of addresses
◦ Forwarded easily
◦ Numerous copies of every e-mail
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Never use e-mail to comment on or send
documents related to personnel actions to
anyone other than a lawyer in the Office of
Counsel