The Litigation Hold Policy is an important tool for compliance with legal obligations. When Emerson College (“Emerson”) becomes aware of the possibility that it may initiate or be the subject of Litigation (defined below), the Office of the General Counsel (“OGC”) (or outside counsel working under the direction of the OGC) will issue a Litigation Hold. The Litigation Hold requires that individuals who may possess information relevant to the Litigation (“Custodians”) maintain Litigation Hold Materials (defined below) and refrain from deleting them while the Litigation Hold is in place. In most instances, the individuals affected by the Litigation Hold Policy will be faculty and staff employees of Emerson College. In some situations, students and third party contractors may also be affected.
Reason for Policy
It is an unfortunate reality that from time to time, Emerson may be involved in lawsuits, government investigations, agency complaints, or other legal proceedings (collectively, “Litigation”). With Litigation comes an important responsibility to preserve information related to the Litigation, which can be paper, electronic records, photographs and recordings, and objects (collectively, “Litigation Hold Materials”). A court or government agency may penalize Emerson for not preserving Litigation Hold Materials, and failure to preserve Litigation Hold Materials may jeopardize Emerson’s position in the Litigation. Accordingly, Emerson takes seriously this legal obligation to preserve and retain Litigation Hold Materials, and expects employees to do so as well. Emerson has created this Litigation Hold Policy to address and explain this obligation. Employees who fail to follow this Policy may be subject to discipline, up to and including termination.
Elaboration of the Litigation Hold Policy
Litigation Hold Notice Content
Litigation Hold Notices will include sufficient information for Custodians to comply with the Litigation Hold. The Litigation hold notice may include for example, the names of individuals involved in Litigation, the possible topics of claims or defenses involved in the Litigation, the name of the court or agency in which the case is pending (if applicable), and the types of information likely to constitute Litigation Hold Materials. The Litigation Hold Notice will provide information about resources for Custodians who need help to preserve Litigation Hold Materials. The Litigation Hold Notice will instruct Custodians to take steps to respect confidentiality and preserve attorney/client privilege and work product protections, including to avoid discussing the Litigation outside of conversations with the OGC or outside counsel.
Litigation Hold Notice Process
The OGC will confer with appropriate personnel to determine who may be a Custodian in a given Litigation. The OGC will circulate a Litigation Hold Notice to Custodians. Whether Custodians will be aware of the identity of other Custodians will be determined on a case by case basis. When a Custodian receives a Litigation Hold Notice the Custodian must review the Litigation Hold Notice, ask any questions necessary to understand the Litigation Hold Notice, and provide an email confirmation to the OGC stating that the Custodian will comply with the Litigation Hold Notice. The OGC has discretion to determine the timeframe and process for Custodians to confirm they will comply with a Litigation Hold in each case. In most instances, should a Custodian (who is not on vacation or otherwise absent from work) fail to respond in three business days, the OGC will send Custodian a follow up email. Should the Custodian fail to respond for another three business days, the OGC will take further steps to obtain confirmation, including, in its discretion, involving the Custodian’s supervisor.
Litigation Hold Reminder Notices
The OGC will circulate quarterly Litigation Hold Reminder Notices to Custodians.
Litigation Hold Releases
When a Litigation has concluded, such as through settlement, dismissal, trial, or other closure, the OGC will circulate to Custodians a Litigation Hold Release, notifying them that their obligations to preserve Litigation Hold Materials have ended with respect to the given Litigation. The OGC will notify Custodians that to the extent they are maintaining the Litigation Hold Materials for other purposes, such as for other Litigation Holds or subject to record retention laws or policies, the Litigation Hold Release does not negate these other obligations.
Role of Information Technology (IT)
The OGC will alert Custodians that if they need technological assistance with their Litigation Hold Obligations, they should contact IT, including for guidance on saving electronic Litigation Hold Materials to backed-up locations.
The OGC will provide IT with updated lists of Custodians as cases or individual Custodians are added or released. IT will consult this list when replacing computers for employees or when an employee terminates and turns in equipment. If IT has questions or concerns, IT may contact OGC for guidance.
If any employee subject to a Litigation Hold informs IT of a data loss through, for example, a computer virus or lost device, IT will contact and work with OGC to take appropriate steps to document the measures taken to recover the data.
Role of Archives
The OGC will provide Archives with updated lists of Custodians as cases or individual Custodians are added or released. Archives will consult this list when it receives destruction orders from employees. If a Custodian has provided materials for destruction, Archives will ask the Custodian to confirm that Litigation Hold Materials are not subject to the destruction request. If Archives has questions or concerns, Archives may contact OGC for guidance.
Role of Human Resources (HR)
The OGC will provide HR with updated lists of Custodians as cases or individual Custodians are added or released. HR will consult this list when employees terminate. If an employee who is terminating is a Custodian, HR will alert OGC so that it may work with HR and IT to confirm that Litigation Hold Materials continue to be preserved and that relevant supervisors or successors to the terminating employee’s position or duties maintain the materials.
If at any time when an employee is leaving employment at Emerson (voluntarily or not), if that employee threatens legal action or otherwise leads HR to believe the employee may consider legal action against Emerson, HR will notify OGC immediately so that OGC can assess the propriety of initiating a Litigation Hold.
If HR has questions or concerns, HR may contact OGC for guidance.
If Custodians are concerned about their ability to preserve Litigation Hold Materials for any reason, they should contact IT or OGC. Concerns may arise for reasons including the following: technical issues, certain information is centrally maintained in a department and accessible to a variety of people, or certain materials are evolving, in-use documents.
Christine Hughes, General Counsel
Key Office to Contact Regarding the Policy and its Implementation
Office of the General Counsel