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					Electronically Stored Information
   (ESI) - Retention, Destruction
                  and Scheduling

      October 18, 2007 PAIMS Webinar

         Dorothy M. Bollinger, Esquire
                   Fox Rothschild LLP
                  1250 S. Broad Street
                   Lansdale, PA 19446
                      215-661-9419 (o)
        dbollinger@foxrothschild.com
                    .
 Amendments to theFederal
  Rules of Civil Procedure
 Selected examples of the
  retention, destruction and
  scheduling components
  -   Retention
  -   Destruction
  -   Scheduling
    Federal Rules of Civil
         Procedure
 Amendments effective - December 1,
  2006
 Obligation – ensure that the school
  district preserves, manages, and
  produces “electronically stored
  information” (ESI)
 Includes - the “file” and the “metadata”
 Production form – “particular request”
  or “as it is ordinarily maintained” and is
  reasonably usable.
 ESI includes, among others:
  -   E-mails, IMs, TMs, documents
  -   Graphs and charts
  -   Photographs
  -   Sound Recordings
  -   Images
  -   Spreadsheets and Data
      Compilations
                     ESI
 The School District may be asked for:
   -   An inspection,
   -   Copying,
   -   Testing, or
   -   Sampling of its ESI
 Failure to do so may result in
  sanctions, examples include, costs,
  adverse inference instructions, or a
  spoliation action.
                 ESI
 The school district must respond
  in a timely, inexpensive and not
  in a burdensome way.
 A plan and policy cannot wait
  until a subpoena appears, the
  school district must position itself
  so that it can comply as required
  by the Federal Rules.
      F.R C.P. Pertinent
         Provisions
 Fed. R. C. P. Rule 16(b)
  -   Now contains optional
      provisions for initial disclosure,
      including the option for
      agreement between the
      parties for asserting privilege
      or work product after
      production
      F.R C.P. Pertinent
         Provisions
 Fed. R. C. P. Rule 26(b)(2)
  -   Has been added to excuse a
      party from providing electronic
      discovery that is “not
      reasonably accessible
      because of undue burden or
      cost”;
      F.R C.P. Pertinent
         Provisions
 Fed. R. C. P. Rule 26(b)(5)
  -   Adds a procedure for a party
      to maintain a claim of
      privilege, even after
      production;
      F.R C.P. Pertinent
         Provisions
 Fed. R. C. P. Rule 26(f)
  -   Has been added to ensure
      that Rule 26 conferences
      include a discussion of any
      issues relating to discovery of
      ESI and related claims of
      privilege or protection as trial-
      preparation material;
      F.R C.P. Pertinent
         Provisions
 Fed. R. C. P. Rule 33
  -   Has been amended to specify
      that interrogatory answers
      may refer to ESI;
      F.R C.P. Pertinent
         Provisions
 Fed. R. C. P. Rule 34(b)
  -   Has been amended to add ESI to
      requests for production of
      documents, and it supplies a
      procedure for specifying and
      objection to the form in which
      electronic information is to be
      produced. The default form for
      production is the one that is
      normally used or maintained, and
      the rule specifies that a party need
      not produce the same information
      in more than one form;
      F.R C.P. Pertinent
         Provisions
 Fed. R. C. P. Rule 37(f)
  -   Addresses ESI lost due to
      routine operation of computer
      systems, and sets a higher
      standard for sanctions; and
      F.R C.P. Pertinent
         Provisions
 Fed. R. C. P. Rule 45
  -   Has been amended to apply
      the amendments to third party
      subpoenas (i.e., require
      school districts who are not
      part of a law suit to produce
      their electronic data on short
      notice).
So What Does This Mean
  for a School District?
 1. If your school district does
  not have an information/data
  and/or records/document
  retention and destruction policy,
  then create one that addresses
  in a good faith manner, both
  retention and disposition of
  paper and electronic records.
  -   This may allow the school district
      the “safe harbor” protections
      included in the amended rules.
 2. Perform an “electronic records
  inventory” that identifies the type and
  location of the school district’s ESI.
 3. Classify data as accessible or
  non-accessible.
 4. Implement a thorough “litigation
  hold” program for ESI and make sure
  all relevant employees expressly
  acknowledge if they receive the
  instructions.
 5. Train employees on the
  importance of litigation hold
  policies and data management
  policies.
 6. Be prepared to demonstrate
  the foregoing efforts in the event
  ESI is either inadvertently
  destroyed or cannot be located.
 7. Insure that the IT system can comply with
  the litigation hold requirements as well as
  preserve and produce electronic documents
  during discovery.
 8. Consider how technology and software
  can help address these challenges.
 9. Decide whether the software protects the
  school district as required by the FRCP and
  the school district’s policy.
               Consider:
   The variety of text formats
   The variety of media
   The variety of storage locations
   “Litigation Holds” – initiate and release
   “Relevant documents”
   Form of production
   Preservation vs. excessive
    preservation
    Compliance Items
 Introduction
 Records Retention Policy
 Records Destruction Policy
 Records Retention Schedule
 Specific Statutory and
  Regulatory Records Retention
  Requirements
 Management of Information in
  the Electronic Age
 Amdts to the Federal Rules
        Introduction
 Explanation of Compliance
  Items
 Process - Schedule
 Statute of limitations
  - Periods and actions
 Business and educational
  period
  Areas of Electronic and
      Paper Records
 Federal and PA Records
  Relating to
  -   Employees
  -   Students
  -   General Business
  -   Environmental matters
  -   Medical matters
  -   Construction
  -   Electronic matters
Age Discrimination in Employment Act
Records to be Retained                                                         Period of Retention
a.            Payroll or other records containing each employee’s        Three years.
name, address, date of birth, occupation, rate of pay, and
compensation earned each week.
b.              Personnel or employment records relating to (1) job      One year from the date of the
applications, resumes or other replies to job advertisements or other    personnel action to which any
notice of existing or anticipated job openings, including applications   records relate.
for temporary positions and records pertaining to the failure or
refusal to hire any individual; (2) promotion, demotion, transfer,
selection for training, layoff, recall, or discharge; (3) job orders
submitted to employment agencies or unions for recruitment of
personnel for job openings; (4) test papers in connection with
employer-administered aptitude or other employment tests
considered in connection with any personnel action; (5) physical
examination results considered in connection with personnel actions;
(6) job advertisements or notices to the public or employees relating
to openings, promotions, training programs or opportunities for
overtime work.

c.               Records relating to employee benefit plans, such as     Full period plan or system is in
pension and insurance plans as well as copies of any seniority           effect and for one year after
systems or merit systems which are in writing, rating systems that are   termination.
in effect. If the plan or system is not in writing, a memorandum fully
outlining the terms of such plan or system and the manner in which it
has been communicated the affected employees, together with
notations relating to any changes or revisions thereto, must be kept
on file for a like period.

d.             Personnel records, including those in Sections a, b,      Until final disposition of the
and c above, relevant to an enforcement action brought against the       action.
employer under this Act.
 A.        Records Relating to Employees

             Record/Document                               Code[1]           Period of Retention


1.


2.




     [1]           AC          After Completion           # Files toretained at thdscretion of _________
                   ACT         While Employed (Active)    ##Records pertaining ti outstanding exceptions,
                   AFY         After End of Fiscal Year   unsettled claims, incomplete investigations,case
                   AT          After Termination          pending or under litigation must be retained until
                   OB          Obsolete                   final clearance or settlement.
                   P           Permanent
                   US          Until Superceded
Dorothy M. Bollinger, Esquire
      Fox Rothschild LLP
     1250 S. Broad Street
      Lansdale, PA 19446
    215-661-9419 (Office)
  215-600-0231 (Facsimile)
dbollinger@foxrothschild.com

				
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