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E-Discovery

E-Discovery is a short hand term for "electronic discovery" - which is the process of preserving, securing, reviewing, and exchanging ESI in the context of modern litigation or other legal processes.

SUNY campuses are subject to e-discovery requests for many different reasons. Information and data is identified as potentially relevant by attorneys and placed on "legal hold" for purposes of litigation (whether actual or anticipated) for both State & Federal Lawsuits, New York State Freedom of Information Law (FOIL) requests, state and federal audits and program reviews by government oversight agencies, criminal investigations, and internal campus investigations often related to employee relations issues.  Evidence is extracted and analyzed using digital forensic procedures, and is reviewed to find records that relate to the litigation or information request.

E-discovery is more complex than traditional discovery because of the technology involved in producing the records, and the technology infrastructure that stores the records.  Complexities of e-discovery include:

• Usable format: 
  Electronic data comes in many formats, such as PDF, readable PDF. .doc, .tiff, and .jpeg.  Conversion to formats that are usable and contain the necessary metadata is more complex than a paper record.
• Where the records are located:
  Electronic storage is complex because of the amount of places that records can be physically stored.  Considerations beyond “who is the custodian of the records?” are necessary, and will include an analysis of the computers, technology devices,  hard drives, servers, back-up servers, cloud storage, and computer programs and applications may be involved in the discovery.
• Volume of information is growing exponentially:
  More records in more places becomes inherently more complex than traditional discovery.

• Applicable Laws and Regulations
• SUNY Policies and Procedures
• SUNY Resources
• References to Best Practices and Other Supplemental Material

Applicable Laws and Regulations 

Laws

• Federal Rules of Civil Procedure Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
• Federal Rules of Evidence Rule 1001 Definitions, 1002 Requirement of the Original, and 1003 Admissibility of Duplicates

SUNY Policies and Procedures

SUNY Legal Proceeding Preparation (E-Discovery) Procedure, Document Number 6610.

• Purpose of the Procedure: to provide guidance to aid (state-operated) University campuses, constituencies and officers in their efforts to prepare for and comply with “E-Discovery” responsibilities and demands.
• Summary of the Policy:  The procedure establishes a process by which campuses, along with their campus counsel, should respond to potential holds.  University officers, employees and agents who use electronic storage systems and programs must understand the basic operations of those systems and programs in order to manage records and “Electronically Stored Information” (ESI) according to applicable laws, regulations, policies, and retention schedules.  This includes understanding the duty to notify “Counsel” of potential “Triggering Events.  SUNY Office of General Counsel will make the ultimate determination of what constitutes a Triggering Event.  Following such a determination, Counsel will issue a “Legal Preservation Notice,” if necessary.  Counsel will then direct the “Legal Hold” process and, if necessary, the subsequent production of ESI.  “Key Persons” must cooperate with Counsel to identify, preserve, maintain, and produce ESI that is subject to a Legal Hold, and “IT Personnel” must assist Counsel in the same.  In order to prepare for the significant burden and responsibility that E-Discovery can impose on a campus, the best practice is for each campus to form an E-Discovery Response Team.  The E-Discovery Response Team will lead the campus-based efforts to comply with this Procedure.

Related SUNY Policy

SUNY Policy, Records Retention and Disposition, Policy Document No. 6609

SUNY Procedure, Information Security Guidelines, Procedure Document 6608

SUNY Resources

• Records Retention and Disposition at SUNY Campuses - Guidance document 
  This guidance document explains the process for records management, retention, and disposition at SUNY Campuses.  It includes information for Community Colleges on their State schedules.
• Introduction to the SUNY Records Retention and Disposition Schedule, Policy Document Number 6609 Appendices
• SUNY Email Retention Guidance 
  The question “How long should we retain email?” is a frequent inquiry from our campuses. The answer is that email is simply a medium. Retention policies are best applied to information by subject, not by the medium on which it is stored. That is why we do not have retention policies for paper or CDs, or any other medium that contains information. The purpose of this guidance is to clarify what SUNY campuses should be doing with regard to retention of emails.

SUNY Forms

• SUNY Sample Template Legal Preservation Notice
• SUNY Sample Questionnaire/Interview Outline to Prepare for E-Discovery 

SUNY Compliance Website Pages on Records

• SUNY Compliance Records Retention and Disposition at SUNY
• SUNY Compliance Records Management Officer Resource Webpage
  Includes information on the duties of a campus Records Management Officer, and how to establish a records management program at SUNY campuses.

References to Best Practices and Other Supplemental Material

• BEST PRACTICES IN E-DISCOVERY IN NEW YORK STATE AND FEDERAL COURTS Version 2.0, Report of the E-Discovery Committee of the Commercial and Federal Litigation Section of the New York State Bar Association December 2012, Approved by the NYSBA Executive Committee April 5, 2013. [URL: https://www.nysba.org/Sections/Commercial_Federal_Litigation/ComFed_Display_Tabs/Reports/Ediscovery_Final5_2013_pdf.html].
• CLOUD CONTRACTING: OUTSOURCING E-MAIL@YOURUNIVERSITY.EDU, NACUANOTE, December 2009, Volume 8, No. 4, written by SUNY Office of General Counsel Associate Counsels Seth Gilbertson and Joseph Storch.