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Litigation Discovery Policy

Policy Number: OGC-10

Effective Date: January 1, 2009

Revisions: None

Responsible Officer: General Counsel

I. Purpose

The University is required by law to identify, preserve, and produce certain information in its original state relating to matters that are involved in current, pending or potential litigation or other legal process.   The purpose of this policy is to set forth the authority, obligations, and procedure to identify, preserve, and produce information relating to such matters. 

II. Scope

This policy applies to any and all Evidence required to fulfill the University’s legal obligations with respect to Litigation Discovery.

III. Applicable Members

This policy applies to all University faculty and employees.

IV. Policy

A. Authority

The University Office of the General Counsel (“OGC”) has primary responsibility for representation of the University with respect to current, pending and potential litigation or other legal process, including but not limited to legal actions requiring formal representation filed with local, state and federal courts and administrative agencies.  The OGC has authority to enforce compliance of this policy.

B. Litigation Discovery Obligations

The University and Applicable Members have a legal duty to preserve and produce Evidence and such duty is subject to the laws applicable to Litigation Discovery.  Failure to comply with legally required Litigation Discovery obligations may result in judicially imposed monetary sanctions and adverse findings in the litigation against the University.  In addition, violation of Litigation Discovery obligations by Applicable Members may lead to personal civil and criminal liability including but not limited to monetary fines and penalties, debarment from government programs, and/or imprisonment. 

The two critical legal obligations that arise with respect to Litigation Discovery are (1) the duty to preserve Evidence in its original state, and (2) the duty to produce Evidence to other parties involved in current, pending, or potential litigation or other legal process.  Applicable Members are required to stop all normal and routine destruction of such Evidence when notified by the OGC.

C. Violation of this Policy

Violation of this policy and procedure or failure to timely cooperate in complying with its provisions by any Applicable Member may result in disciplinary action up to and including dismissal. 

V. Procedure

A. Notification to OGC

Any Applicable Member who becomes aware of any litigation, threat of litigation, or other legal action or investigation by any court, agency or other governmental entity must immediately notify the OGC and immediately cease any destruction of any possible Evidence unless authorized otherwise by the OGC.  This includes:

  • Receiving a subpoena, summons, complaint or other legal document of a legal action, order, or other.  In this case, the Applicable Member must comply with Policy OGC-4 (“Service of Legal Papers”).
  • Receiving notice regardless of form (e.g. letter, e-mail, verbal) identifying the possibility of litigation or legal action.
  • Direct or indirect knowledge that certain events may lead to litigation or other legal action.

B. Preservation Obligation

1. Issuance of Litigation Hold Notice

The OGC will evaluate the circumstances surrounding the matter in question and determine if Evidence must be preserved.  If the OGC reasonably anticipates that the University or an Applicable Member is likely to be a party to litigation or a governmental investigation, a Litigation Hold Notice will be issued by the OGC to appropriate individuals.  The Litigation Hold Notice will:

  • Describe the circumstances of the matter;
  • Describe the Evidence that must be preserved;
  • List all Applicable Members receiving the Litigation Hold Notice;
  • Require the Applicable Member to identify, preserve, and protect all Evidence whether within or outside of University Resources and University Information;
  • Require the Applicable Member to notify OGC of any other Applicable Members or third parties involved in the matter who did not receive the Litigation Hold Notice;
  • Require the Applicable Member to cooperate with OGC or other designated University personnel to secure Evidence; and
  • Include any other appropriate information or requirements.

2. Compliance with Litigation Hold Notice (Preservation Period)

Applicable Members must take immediate steps to comply with the Litigation Hold Notice which include but are not limited to:  

  • Protect, preserve, and/or relinquish any and all existing and future Evidence in its unaltered, original state within their possession, access, or control;
  • Identify for the OGC and OGC-designated personnel the location of Evidence within University Resources or non-University Resources
  • Provide University, and OGC-designated personnel, access to University Resources, University Information as well as non-University Resources within their possession, access to such resources and information in order to allow the University to preserve and secure Evidence or University Resources and University Information in its unaltered, original state;
  • Cooperate with University’s department of Information Resources and Technology and any other University personnel or third parties working on behalf of the University to preserve and secure Electronically Stored Information (ESI) in its unaltered, original state; and
  • Take any other steps required by the University, or a court, agency, or other governmental entity in order for the University to comply with its legal Litigation Discovery obligations.

C. Production Obligation

The OGC will evaluate the circumstances of the matter in question and determine if preserved Evidence must be produced.  Members must cooperate with OGC in the production of such Evidence and shall provide the OGC and OGC-designated University personnel access to University and non-University Resources within their possession, access, or control, as well as produce any Evidence and University Resources and University Information within their possession, access, or control as required to comply with this policy or other applicable policies.

VI. Definitions

Electronically Stored Information

Any and all information created, manipulated, communicated, stored, and best utilized in digital form, requiring the use of computer hardware and software.   Electronically Stored Information (“ESI”) resides in many places, including:

  • Office equipment – including personal computers, laptops, smart phones, PDAs, Blackberries®, and voicemail systems ;
  • networked photocopiers,
  • Portable Media – including jump drives, portable hard drives, CDs, DVDs, magnetic tapes, diskettes, memory cards;
  • Servers – including email servers, SPAM filter servers, Blackberry® servers, document management systems 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 University); and
  • Back-up tapes or other backup systems.

Evidence

Any and all objects or information in any medium which are related to matters that are involved in current, pending or potential litigation or other legal process.  Evidence may include but is not necessarily limited to any University Resources or University Information, letters, correspondence, business records, photographs, written notes, Electronically Stored Information, video, voicemail and equipment or property. 

Litigation Discovery

The phase of state or federal court litigation or investigation in which parties seek and provide information from each other to investigate the facts of the case and to develop claims and defenses in preparation for a legal trial or other legal process. Discovery can come in numerous forms, including requests for Evidence and other information in any medium (e.g. documents, records, data, Electronically Stored Information), 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), and depositions (oral testimony).

Litigation Hold Notice

A formal directive issued by the Office of the General Counsel that the University is under a legal obligation to preserve potentially relevant evidence.   

University

Drexel University including its Colleges, Schools, affiliates, divisions and subsidiaries except Philadelphia Health & Education Corporation d/b/a Drexel University College of Medicine.

University Information

Any and all assets and information, wherever located and in whatever medium, whether digital, electronic, video, paper or in any other form, that is procured, received, obtained, derived, created, generated, managed or maintained in furtherance of any University activities and business.  This includes but is not necessarily limited to:

  • Information procured, received, obtained, derived, created, generated, managed or maintained for or on behalf of the University and all other information within the scope of the University’s Code of Conduct as well as its policies and procedures; 
  • Intellectual Property.

University Resources

Any and all physical, electronic, financial, tangible and intangible resources and assets, wherever located and in whatever medium, that is used, procured, received, obtained, derived, created, generated, managed or maintained in furtherance of any University activities and business.  This includes but is not necessarily limited to:

  • Information received, procured, obtained, derived, created, generated, managed or maintained by or on behalf of the University, wherever located and in whatever medium;
  • Computer and network resources and services, including but not limited to hardware, software, electronic communication systems and equipment, databases, or other electronic content;
  • Physical structures and space such as buildings, offices, classrooms, lab space, auditoriums and other University facilities and grounds;
  • Equipment, supplies, and vehicles;
  • Capital, cash and any asset that can be reduced to cash.