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Office of General Counsel

Litigation Holds and E Discovery

Electronic discovery, or e-discovery, refers to the process of retrieving, saving and producing electronically stored information (“ESI”) in anticipation of and during litigation.  In 2006, the Federal Rules of Civil Procedure were amended to include the preservation and production of ESI.  ESI may be stored on PDAs, mobile devices, tablets, laptops, office computers and portable media (such as USB drives, CDs, DVDs, etc.).  Failure to comply with the requirements for preserving and producing ESI may subject the University to serious sanctions.

Lifecycle of a Litigation Hold

  1. The Office of General Counsel (“OGC”) will send a notice of Litigation Hold/Duty to Preserve Evidence to all employees who may be in possession of potentially relevant information.  The Notice will inform employees of the nature of the threatened or actual lawsuit and instruct employees to preserve documents relating to the allegations.   Data stewards and data custodians will be copied on the Notice and should work with employees receiving the Notice to preserve any potentially relevant information.
  2. The OGC will include an Electronic Records Questionnaire with the Notice.  Employees, with the assistance of data stewards and data custodians as needed, are to complete and return the questionnaire to the OGC within ten (10) business days of receipt.
  3. Employees in possession of potentially relevant information are under a legal obligation to preserve immediately the information wherever located and in whatever form.  Information subject to the Notice may be in hard copy or electronic form. Information may be located in division files, college files, department files, individual files, staff files and electronic files and folders, and may also include any records generated as part of the individual’s employment (including on personal devices).
  4. Upon receipt of the Notice, immediately suspend the deletion, overriding or any other destruction of ESI relevant to the lawsuit.  Documents subject to the Notice must be preserved even if they would normally be destroyed in accordance with the UNC System Records Retention and Disposition Schedule.
  5. Any new ESI that is subject to the Notice and generated after the date of the Notice must also be preserved.
  6. The OGC will notify employees when the need to produce the ESI is required.  Until such time as the Notice is discontinued, the ESI must be preserved.
  7. The OGC will also notify the employees when the need to preserve is over.

Any questions regarding the process for preservation of data should be directed to the Kathryn Bogle, Director of Legal Operations Policy and Compliance.