What is a litigation hold?
An order from the district’s administration to agents, employees, or third-parties not to destroy any documents that might be relevant to a legal proceeding or that might lead to the discovery of relevant information. In addition, that means suspending any destruction of documents pursuant to the school’s record retention policy (your Board does have one, right?).
When does a duty to implement a
litigation hold arise?
When there becomes a likelihood that potential litigation will occur. This could arise long before formal proceedings are filed and long before “discovery” begins. The duty arises when the party “reasonably anticipates” or should have anticipated litigation.
What is discovery?
Back in the early days of our legal system, trials were battles of wits and surprise witnesses and evidence. Today, however, statutes and court rules require parties to disclose to each other all information relevant to the issues in dispute well in advance of trial. Discovery is the term used to describe the process of the information disclosure required by law.
Who is responsible for determining
when to implement a litigation hold?
The school, but advice of legal counsel should be obtained.
No excuse: But my school contracts with a vendor to manage our
documents and records and they deleted stuff!
Federal Rules of Civil Procedure obligate the school to ensure that information, including electronically stored information, is preserved even when that information is in the possession of third-parties.
Tip: Make sure that the vendor’s retention/destruction schedule is the same as the school’s policy. Make sure that the vendor agrees to comply with and help you implement litigation holds. Require the vendor to indemnify the school for any failure on the vendor’s part to abide by the policy.
Prepared by: Zukowski Law Offices, © 2009
Note: These general suggestions are for general informational
purposes only and should not be regarded as a substitute for specific
legal advice to your District. Instead, administrators should
consult with legal counsel whenever any question arises as to the
District’s responsibility or the rights of any parent or student.