Evidence – When does the Duty to Preserve Arise?

In the Fall 2011 edition of Education News, we addressed situations where a school district could be exposed to electronically stored information (ESI) spoliation sanctions and provided steps to include in Board Policy to protect districts from claims that evidence was destroyed.  Spoliation is defined as the destruction or significant alteration of evidence or the failure to preserve property for another’s use as evidence.  In application to ESI/e-mail, Courts have determined that once a school district is on notice of a potential lawsuit, the district must preserve all potentially relevant documents and ESI/e-mail.  Although the Federal Rules of Court regarding preservation of ESI have been in place since December 2006, the Pennsylvania Supreme Court only recently amended the Pennsylvania Rules of Court to address ESI on August 1, 2012.

However, in a comment to the Pennsylvania Court Rules, the Rules Committee noted that the term “electronically stored information” is not intended to incorporate the federal law regarding the discovery of ESI.  Rather, the treatment of such issues is to be determined based upon principles of “proportionality” underPennsylvanialaw.  The proportionality standard requires the court to consider the nature and scope of the litigation, including the importance and complexity of the issues and the damages at stake; the relevance of ESI and its importance; the cost, burden, potential delay and ease of producing ESI; and whether substantially similar information is available with less burden.

When does the duty arise to preserve ESI?  Federal law requires ESI to be preserved when the school district is aware of the potential of litigation.  Although federal law is not binding inPennsylvaniastate court, caution should be exercised by school districts that as soon as the potential for litigation arises, steps should be taken to preserve ESI/e-mail.  Federal courts have held that notice of a potential lawsuit is not when the lawsuit is actually filed but may arise at a much earlier time if the district first becomes aware of the potential that a lawsuit could develop.  An example in the federal context is in discrimination claims when notice is received that an EEOC or PHRC charge of discrimination has been filed.  Likewise, in a state court action involving injury on school property, the Pennsylvania Rules of Court require that an injured party provide notice of the incident and their injuries to the school district within six (6) months of the incident occurring.  Upon receipt of this six-month notice, the district should take steps to preserve ESI/ e-mail that may be relevant to the claims asserted.  Failure to do so could result in claims of ESI/e-mail spoliation.

Although the new Pennsylvania Rules of Court regarding ESI may not intend to incorporate federal law on this issue, care should be taken to avoid being the first case to test the Pennsylvania Court Rules.  The safest course of action is to preserve evidence when the school district first becomes aware of the potential for litigation.

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