UNDERSTANDING UCSF’s E-DISCOVERY OBLIGATIONS
Effective December 1, 2006, the Federal Rules of Civil Procedure (“Federal Rules”) were amended in various ways that have substantially affected electronic discovery (“e-discovery”) and records management obligations. Once the UCSF has been put on notice that litigation of a legal claim is reasonably likely to occur, the Risk Management Office under the oversight of the Office of Legal Affairs and with the assistance of IT, will take action to preserve any documents or electronically stored information that may be pertinent to that claim.
Implementing these “e-discovery holds” requires coordination between various offices and individuals on the UCSF campus, including the Office of Legal Affairs, IT, Risk Management and faculty and staff members. This section of our website will help you understand UCSF's e-discovery and document preservation obligations and what may be expected of you when those obligations are triggered by notice of threatened or anticipated litigation or government investigations.What are Discovery, E-Discovery and ESI?
“Discovery” is the phase of state and federal court litigation in which parties seek information from each other to investigate the facts of the case and to develop claims and defenses in preparation for trial. Discovery can come in numerous forms, including interrogatories (a set or series of written questions answered in writing under oath), requests for admission (written statements to either admit or deny key facts), depositions (oral testimony), and requests for production of documents. The term “documents” has now been construed by the courts and/or legislatively defined to explicitly include electronically stored information.
E-discovery involves the identification and retention before, and the production during, litigation of ESI (electronically stored information). ESI consists of dynamic data and information that, in some instances, would be incomprehensible if separated from the system that created it. As explained in an advisory committee report to the Federal Rules of Civil Procedure, ESI will exist in exponentially greater volume than the hard-copy documents that parties have traditionally produced in response to litigation discovery requests.
ESI resides many places, including:
- Office equipment – including personal computers, lap tops, smart phones, voicemail systems, networked photocopiers, Blackberries®;
- Home equipment – including home computers, personal PDAs;
- Portable Media – including jump drives, CDs, DVDs, magnetic tapes, diskettes, memory cards;
- Servers – including email servers, SPAM filter servers, Blackberry® servers, document management servers, instant messaging (IM) servers, file servers, print servers, firewall servers, HR database servers, payroll database servers, and internal and external web servers;
- Proprietary applications (software or other programs licensed exclusively to the institution); and
- Back-up tapes.
The two critical responsibilities that arise with respect to electronic discovery are (1) the duty to preserve ESI and (2) the duty to produce pertinent portions of that information to the other parties to the litigation. Document preservation obligations generally arise once an institution reasonably anticipates that it is likely to be a party to private litigation or a government investigation. The preservation obligation, therefore, may arise even before a case is filed or an investigation is commenced. Once a preservation obligation is triggered, an institution has the obligation to preserve all information – including ESI – that may potentially be relevant to the dispute. The amount of information preserved will likely be far greater than the amount of information ultimately turned over to the other parties in the litigation.
Failure to comply with e-discovery obligations can have disastrous consequences. UCSF could face adverse jury inferences. In addition, courts can impose stiff monetary penalties against parties that do not adequately preserve discovery materials. Additional potential civil penalties may include dismissal of claims or defenses and orders to pay opposing counsel's attorneys' fees and costs. In government investigations, egregious failure to meet e-discovery obligations can result in charges of obstruction of justice charges and criminal prosecution.
UCSF has established an e-discovery response team which consists of representatives from Risk Management and Enterprise Information Security with oversight by the Office of Legal Affairs. When the team identifies a legal claim that may reasonably be expected to lead to litigation or government investigation, it works together to notify the holders of ESI that is relevant to the dispute of the need for retention and preservation of such information in order to comply with UCSF's e-discovery obligations and to insure that the information will be available to be produced at a later date. If you are identified as having documents or ESI that may be relevant, you will receive an email communication from Risk Management notifying you that Enterprise Information Security representatives will work with you and your local IT personnel to accomplish the actions necessary to preserve and collect the information.
Enterprise Information Security and the e-discovery response team have established guidelines regarding communication about and collection of information necessary to satisfy UCSF's legal obligations for e-discovery. Those guidelines are available at: EIS
All UCSF computer system users are obligated to cooperate with Risk Management, EIS and Legal Affairs to ensure that any documents and ESI that may be relevant to a particular claim or investigation are identified and preserved. Any questions regarding e-discovery efforts in a particular UCSF case should be directed to Deputy Campus Counsel Greta Schnetzler at gschnetzler@legal.ucsf.edu
