One might wonder how a “litigation hold” is applicable to a school, but the duty to preserve and maintain documents is applicable to businesses and schools alike. The phrase “litigation hold” is not a word commonly found in our everyday vocabulary, but, unfortunately, it has become necessary for schools to become familiar with the term and understand why it is important.  Understandably, this process can sometimes appear to be overwhelming, but understanding your responsibilities as it relates to the preservation of documents will save your school time and money.

What Is a Litigation Hold and Why Is It Important? 

A litigation hold is a clear, concise instruction to employees and staff to preserve and not destroy any paper or digital documents that contain potentially relevant information that could be involved in an investigation or lawsuit.  A litigation hold, generally, takes on the form of a letter or memorandum issued to school personnel, such as a Notice of Claim or a Due Process Hearing Request.  Typically, litigation holds are associated with an actual lawsuit.  However, when a school is a party to an administrative agency investigation, such as a complaint filed by a parent with the State Department of Education, the same “hold” principles apply.

When Does the Duty to Preserve Documents Arise? 

The duty to preserve documents arises when you have “notice” that the documents might be necessary for an investigation or a lawsuit.  For example, when an employee has filed a complaint with the Equal Employment Opportunity Commission or Arizona Civil Rights Division, the agency will provide you with a copy of the complaint; which provides the “notice” that the documents need to be preserved for an investigation.   Similarly, if the parent of a student has provided you a copy of a complaint that he/she has filed with the Arizona Department of Education, you have notice that the documents need to be preserved upon receipt of the complaint.   The duty to preserve documents also arises when you should have reasonably known that the documents or data may be necessary for a future investigation or lawsuit.  If an employee is injured on the job, for example, it is reasonable for you to know to retain the related documents.  Most importantly, use common sense when determining if there is a duty to preserve.

What Must Be Preserved? 

You have a duty to preserve what you know or reasonably should know is relevant to an investigation or lawsuit.  More specifically, you must preserve all documents that existed at the time you had notice and all documents created in regard to the investigation after you had notice.  This duty extends to all staff members that are likely to have relevant information.

I Have Been Notified That My School Is Being Investigated or Sued.  What Do I Do Now? 

First and foremost, you need to meet with your litigation hold team, which should include your school’s legal counsel.  As a team, you must identify all documents, departments, and sources of possibly relevant information.  Review your document retention policies and determine if any should be suspended so that documents are not destroyed during the hold period.  Additionally, make certain that any proposed changes to computer systems, servers, hard drives and storage devices are deferred until the end of the litigation hold period. After you have met with your team, you will need to prepare a letter regarding the litigation hold.  First, provide a brief background of the issue.   Then, describe the information to be preserved, the length of time the documents or data should be maintained, and the consequence for non-compliance.  Detail the procedures for saving the relevant information.  Most importantly, include the contact information for the individuals designated to handle the matter.

Who Receives the Litigation Hold Letter? 

The litigation hold letter should be provided to all individuals with knowledge or potential evidence relevant to the investigation, as well as to those individuals who are responsible for maintaining record systems, i.e., IT Director, Records Clerk, etc. .

What Happens if the Records Are Accidentally Destroyed? 

The law allows for a “safe harbor” from sanctions, provided that the records are destroyed during the routine operation of a records destruction policy, so long as the destruction was done in good faith, and there was no litigation hold in place where the records should have been saved.

This article is a general discussion of the legal obligation regarding litigation holds, and is not intended to provide legal advice regarding a particular situation. All schools are encouraged to seek specific legal advice regarding compliance with these and any related or overlapping laws.

 

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding What Is a “Litigation Hold” and Why Is It Important?,  or any other education law matters, please feel free to contact Education Law Attorney, Kimberly R. Davis at 480.461.5387, log on to www.udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.