School districts are constantly bombarded by litigation involving federal constitutional rights or protections, whether First Amendment student free speech issues or employee discrimination claims based on age, sex or race. Although discrimination claims are filed preliminarily with the Equal Employment Opportunity Commission (EEOC) or the Pennsylvania Human Relations Commission (PHRC), they sometimes result in federal litigation. As federal litigation, these claims are governed by the Federal Rules of Civil Procedure, and most importantly, the discovery rules regarding electronically stored information (ESI). ESI encompasses all electronically-stored information/documentation, but in most cases, involve the preservation of email. Even if a district successfully defends against the discrimination claims, the failure to properly preserve and produce ESI could spawn spoliation claims which take on a life of their own and expose school districts to liability. Therefore, it is important to understand the school district’s responsibility in preserving ESI and limiting their exposure to spoliation sanctions.
What is spoliation? Spoliation is the destruction or significant alteration of evidence or the failure to preserve property for another’s use as evidence. How does this apply to ESI/email? Basically, once a school district is on notice of a potential lawsuit, the district must preserve all potentially relevant documents and ESI/email. Courts have held that notice of a potential lawsuit is not when the lawsuit is actually filed but arises at a much earlier time when the district first becomes aware of the potential that a lawsuit could develop. For example, in discrimination claims, this may occur when notice that an EEOC or PHRC claim of discrimination is received.
The most important step a school district can take to prevent charges of ESI/email spoliation is to adopt a document retention/destruction policy. In adopting such a policy, consideration must be given to school district operations and document retention requirements governed by both state and federal law. With regard to email, the district’s computer and electronic infrastructure capabilities and needs must be considered, including the need to conserve electronic storage space based upon email volume and the normal use and storage capabilities of the district computer servers. An effective policy should address the following:
- Establish an appropriate and workable retention schedule for paper and ESI;
- Establish district-wide best practices tailored to district needs by identifying the records that must be retained based on legal or regulatory requirements;
- Address the retention of email and other communications, such as instant messaging and voicemail;
- Address other forms of electronically stored information that are created in the ordinary course of business;
- Develop appropriate use policies which establish and promote the appropriate use of the district’s email accounts; and
- Train employees to manage and retain business records created or received in the ordinary course of business.
However, adoption of a document retention/destruction policy is not sufficient alone. It is just as important for the district staff to consistently follow and implement the policy by neither destroying documents and ESI/email prematurely nor retaining them beyond their useful life. Proper implementation of the document retention/destruction policy is a key factor in determining whether documents have been destroyed in bad faith.
Even if a proper document retention/destruction policy is adopted and properly implemented, it must include a “litigation hold” provision. Basically, once a school district reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and implement a litigation hold to ensure the preservation of relevant ESI/email documentation. District officials/employees who are directly involved in the subject matter of the litigation must not destroy relevant ESI/email that might be useful to the person who has filed the lawsuit. While there is no duty to keep or retain every document in its possession, there is a duty to preserve what is known or reasonably should be known to be relevant in the claims or defenses in the litigation. Documents should also be retained which could lead to the discovery of admissible evidence, are reasonably likely to be requested during discovery and/or are the subject of a pending discovery request. Depending upon system limitations, it may be necessary to immediately preserve an image of all electronic data of relevant parties as soon as the potential for litigation arises. The fairly nominal cost to preserve electronic data far outweighs the potential sanctions which could be imposed for spoliation of the ESI/email.
Possible spoliation sanctions include a negative inference against the school district on the claims being raised, the striking of the district’s defenses, the mandatory admission of alleged facts which could establish the claim against the district, payment of the opposing party’s attorney fees, contempt or fines against the school district. Depending upon the type of sanction imposed, the lawsuit could be lost where otherwise the school district could have prevailed. For these reasons, a proactive approach to adopt and implement document retention/destruction policies and properly implementing a litigation hold to preserve ESI/email is vitally important to protect a school district’s interests. If your district does not have these protections in place, steps should immediately be taken to guard against future ESI/email spoliation sanctions.