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Electronic Records Requirements
Effective December 1, 2006, the Federal Rules of Civil Procedure were amended to require preservation and retention of certain "Electronically Stored Information" or 'ESI.' Under these new rules, there is a legal duty to preserve evidence (e.g., records), including ESI, when the institution has notice that the evidence is relevant to pending federal litigation or when a party should have known that the evidence may be relevant to future federal litigation.
These new federal rules require a party to suspend routine or intentional purging, overwriting, re-using, deleting, or any other destruction of electronic information relevant to a federal law dispute, including electronic information wherever it is stored - at an institution work station, on a laptop, at an employee's home, etc. It includes all forms of attorney-client privileged and non attorney-client privileged electronic communications, (e.g., e-mail, word processing, calendars, voice messages, videos, photographs, information in PDA's) in any location where data may be stored. This electronic information must be preserved in its original electronic form, so that all information contained within it, whether visible or not, is also available for inspection. It is not sufficient to make a paper copy of electronic communication.
In the context of federal litigation, although all information must be preserved, no data will be disclosed to the opposing party without first being reviewed to determine legal necessity, relevance, and privilege. Personal and other relevant information and privileged documents (e.g., attorney-client communications) will not be disclosed to the opposing party.
The penalties for non-compliance with the new federal law regarding electronic evidence retention in federal litigation are severe and potentially costly. The consequences for your institution could include, but are not limited to, monetary sanctions; payment of the opposing party's attorneys' fees and costs; preclusion of the institution's evidence at trial; dismissal of the institution's claims and counterclaims; and default judgments against the institution. Each institution is solely responsible for payment of any monetary sanctions issued by the court resulting from the institution's non-compliance with electronic record retention requirements as required by federal law and a litigation hold.
There may be instances in which your institution will have to implement a "litigation hold" that requires the retention of certain paper copy and electronic records for an indefinite period of time due to pending or anticipated federal litigation. A litigation hold is the process whereby Roane State Community College, when sued in federal court or when reasonably anticipating federal litigation, sends a communication suspending the normal operation of document destruction policies for particular records that are relevant to the federal litigation. Therefore, notwithstanding the applicable records retention schedule, documents that are subject to a particular litigation hold must be retained until the hold is removed. The Records Coordinator is responsible for implementing litigation holds upon notice of the need for litigation hold. Identifying instances in which a litigation hold is required and its subsequent implementation requires collaboration of multiple individuals at your institution, including Roane State’s assigned attorney.
Litigation Hold Procedures
1. Institution's Notification of Federal Litigation (Responsible Party: All Employees)
1.1. Employees have an affirmative duty to inform the institution's Records Coordinator when they receive official or unofficial notification of federal litigation or anticipated federal litigation against the institution.
1.2. Official Employees are considered to be in receipt of official notice of litigation when they receive a complaint, summons, and/or other official documents related to a federal lawsuit.
1.3. Unofficial Employees should, at a minimum, consider receipt of the following documents as actions that are related to anticipated federal litigation and notify the Records Coordinator accordingly.
1.3.1. Equal Employment Opportunity Commission Charge
1.3.2. Tennessee Human Rights Commission Charge iii. Office of Civil Rights Complaint
1.3.3. Occupation Safety Health Administration Violation Complaint v. Employee or student Harassment / Discrimination complaint pursuant to TBR Policy (P-080)
1.3.4. Title VI or Title XI Complaint vii. Employee, student, or third party complaint alleging a violation of any federal law
2. Employee's Notification of Federal Litigation to Records Coordinator (Responsible Party: All Employees)
2.1. Based on the abovementioned parameters, employees who have official or unofficial knowledge of federal litigation or anticipated federal litigation against the institution must inform the institution's Records Coordinator, in writing, of the matter within two (2) business days of their receipt of notification.
3. Records Coordinator's Issuance of Litigation Hold Notice (Responsible Party: Records Coordinator)
3.1. The institution's Records Coordinator, or designee, will issue an official litigation hold notice regarding the matter to the appropriate individuals within five (5) business days of receipt of notification of pending litigation or anticipated litigation. Do not distribute the model litigation hold notice. Should a matter arise that requires your institution to implement an official litigation hold, the Records Coordinator, or a designee, must contact the institution's attorney to discuss drafting a litigation hold notice for the particular case.
4. Employees' Compliance with the Litigation Hold Notice (Responsible Party: Employee recipients of the litigation hold notice)
4.1. In response to an official litigation hold notice issued by the institution's Records Coordinator or his/her designee, all individuals who receive the notice must compile paper and electronic records (including e-mails, voicemails, videos, etc.) as instructed in the notice letter. Electronic records must be retained in the original electronic format (e.g., burned to disk / CD, saved in a secure folder on the system server that is not subjected to unannounced deletion, etc.). It is not sufficient to print paper copies of electronic records as they must be maintained in their original electronic format. It is the responsibility of individuals to whom the litigation hold notice is issued to retain all records that are responsive to the notice until they receive written notification indicating otherwise.
Information Technology Responsibility
1. Assist the Records Coordinator with identifying where ESI is located, including all institutionally owned equipment, personally owned by the individual or by a third party. These locations include, but are not limited to: PC’s PDA’s, email systems, instant messaging systems (IM), voice mail (VM) systems, network storage, etc.
2. Provide the Records Coordinator with information as to how long ESI can be expected to be retrievable through routing system backup procedures performed by IT.
3. Assist the Records Coordinator with the identification of threats of non-compliance so the appropriate policies can be developed to mitigate the risk.
4. Coordinate with the Records Coordinator in the development of an archival strategy consisting of hardware, software and process accountability. The process should ensure that the information saved complies with TBR guidelines and policies as well as state and federal law.
5. Coordinate with the Records Coordinator to establish protocols, systems and controls that can be easily managed and monitored in order to ensure compliance.
Email and Document Archiving
When you receive notification that ESI (email or documents) you created or maintained are to be maintained as part of a litigation hold, you are responsible for maintaining those documents in an unaltered state. To meet those requirements, please follow the instructions in the appendices below to archive the documents safely.
See Appendix A – Email Archiving for Email archiving process.
See Appendix B – Document Archiving for Document archiving.
Appendix A – Email Archiving
Creating a Folder (Microsoft Outlook)
1. In Outlook, create a folder by selecting File | Folder | New Folder
2. A dialog box will appear,
2.1. Input the folder name (something like Litigation Hold).
2.2. Ensure that the Folder Contains: selection has Mail and Post Items selected,
2.3. Then click on Mailbox as the location and click OK.
3. You will have a folder in Outlook Mailbox with the name you gave in 2.1 above. This is where you will store all email items related to the litigation investigation. This folder will not be subject to unannounced deletion.
1. Use the folder created in steps 1 – 3 above, you may file all email items that must be retained under TBR Guidelines G-070 or a litigation hold notice.
2. In Outlook click on the email you wish to file:
2.1. Right click the email with your mouse then left click Move to folder
2.2. In the dialog box listing your folders, select the folder created in steps 1 – 3 above then
2.3. Click OK. Your email will be moved to the new folder.
Create a Backup
1. On your computer, go to My Documents or on your U: drive and create a folder using the same name you used in the Creating a Folder steps above.
2. Export the Outlook folder to the new archive location.
2.1. In Outlook, select File | Import and Export | Export to a file |click Next
2.2. Select Personal Folder File (.pst) from the list; click Next.
2.3. Select the folder you created; click Next.
2.4. Enter the path (or browse) to the folder created. Name the file the same as the folder you created for ease of identification… ensure you retain the .pst extension. Select Finish.
2.5. A dialog box will pop up asking you to create a name for the pst file. Use the name you created previously and click OK. Do not apply a password . This file must be retrievable in your absence. If the password is lost so is the data.
Appendix B – Document Archiving
Document archiving is a simple process. Simply copy or move the documents related to the Litigation Hold to the same folder created in the “Create a Backup” step in Appendix A. This will ensure that all ESI documents are in one place. To protect your files against accidental deletion, you will now need to back up the folder. You may use a CD-R, DVD or Flash Drive depending on the total size of the documents to be saved. You may use the following procedure:
1. Right click on the folder you created and stored all the ESI.
2. Select Send to
3. Select the drive you plan to use to store the information to. If it is a Flash Drive, you files will be copied to the drive. Repeat these steps each time you add new information to the folder.
4. If you chose a CD or DVD you will need to follow these steps:
4.1. Open My Computer
4.2. Open the CD or DVD drive listed in the dialog box.
4.3. Select File | Write these files to CD/DVD
4.4. Follow the instructions in the dialog box or wizard. You may accept the title of today’s date or change it if appropriate. Select Next.
4.5. The computer will write the files to the CD/DVD. Once it is done, the CD/DVD will eject.
4.6. Select Finish and store the CD/DVD in a safe place.