Education
Lawsuits and Lessons Learned
Since the adoption of special amendments to the Federal Rules of Civil in late 2006, the field of e-discovery law has become more dangerous for educational institutions.
Recent cases show courts are serious about expecting litigants to possess and be able to find their email and other electronic records. Litigation trends suggest that an educational institution is wise to be generous in the retention of email by decision-makers and to be capable of easily finding and searching the more recent records.
A prudent course would be for the institution to implement a central email archival system.
Sonnino v. University of Kansas Hospital Authority
The scope of the demand for records in a lawsuit can be extensive. In Sonnino v. University of Kansas Hospital Authority, for instance, a medical professor sued a university hospital for retaliation after she had complained about sexual discrimination. She claimed her hospital privileges had been improperly curtailed.
Under the powers of discover in the litigation, she demanded access to voluminous e-mail records of many administrators and professionals at the hospital. Her rationale for demanding these records was that they could possess evidence of whether decision-makers had engaged in retaliation. The hospital objected on the grounds that her demands for discovery were too broad and onerous, but the court upheld the professor’s demand. The hospital eventually settled out of court.
Lessons Learned
Our legal and political culture harbors a deep belief that if records were created, they need to be retained and disclosed for the purpose of resolving disputes.
Courts judge records management decisions retrospectively, in other words, with 20/20 hindsight. Judges evaluate a party’s record retention and destruction practices after they have been implemented.
What this means in practice is that organization are at risk. If a corporation makes a record-keeping mistake, it can be punished for failing to possess or find the records that a court later believes should have been preserved. Hence, it has incentive to give itself a margin for error and store more.
Jane Doe v. Norwalk Community College
A student alleged that a teacher at Norwalk was making sexual advances toward her. Faculty members discussed the allegations by email, and police opened an investigation in February 2004. The teacher in question left the college. Then in November 2004 the student sued the college and demanded under the litigation rules of discovery that the college turn over all relevant e-mail records.
The college was not forthcoming, so the student hired a computer forensic expert who examined the laptop that had been issued to the teacher. The expert claimed the college had destroyed electronic evidence. He showed that the college possessed 500 emails from the relevant time period belonging to a certain teacher who knew about the allegations, but the college could not produce this teacher’s e mail concerning the allegations.
The college’s IT manager tried to explain to the judge what happened. He told the court that the college did not intentionally destroy anything, although he admitted that after the suspect teacher left, the college followed its usual policy of cleaning the hard drive of the laptop belonging to the teacher so it could be given to another employee. The cleaning was a well-intentioned policy to protect the privacy of student information and to prevent unauthorized access to the college’s IT infrastructure. Further, the IT manager said some records may have been overwritten in the ordinary course, and some records may have been lost due to computer error.
The college did not persuade the judge. The judge said the college should have preserved all evidence relating to the suspect teacher from the beginning of the police investigation in February 2004. What’s more, the judge did not believe the college’s explanation for why e-mails could not be found. The judge found that Norwalk was "at least grossly negligent, if not reckless" in its failure to preserve electronic records. As a consequence, the judge ordered the college to pay the student’s costs in pursuing e-discovery from the college (e.g., attorney and expert costs).
Moreover, the judge ruled that when this case goes to trial, the jury will be told that the college destroyed or mishandled records that would have supported the student’s side of this case.(2) This latter sanction can carry severe implications for the college as it attemptsto defend itself. The sanction increases the likelihood the institution will lose the case and have to pay sizable money damages to the student.
The lesson from Norwalk shows how harsh a court can be on a public entity that cannot produce its email records in a timely fashion.
FOIA
Increasingly, state schools must respond to freedom of information and open records requests for email.(3) For example, a court recently required Spotsylvania County, Virginia, under a freedom of information law to turn over e-mails pertaining to lawsuits involving the school superintendent.(4)
Schools can lower their costs if they have organized, searchable records.
University of Vermont
Email records serve as a check against mistake, corruption and other wrongdoing. Educational institutions need these records to enable investigations of misconduct on the part of administrators or other decision-makers.
For example, when the University of Vermont received allegations that tenured professor Eric Poehlman had engaged in scientific fraud (resulting in dishonest applications for grants from the National Institutes of Health), the university had to conduct an exhaustive investigation, including a review of his email.(5)
Contact us for a free 30 minute email policy consultation.
1. Thomas B. Scheffey “Erased E-Mails Return as Sanction in Harassment Case, August 27, 2007, The Connecticut Law Tribune www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1188291743463
2. 2007 WL 1585452 (D.D.C. June 1, 2007).
3. The Electronic Mail Policy at Kansas State University says that the university is often subject to such requests. http://www.k-state.edu/policies/ppm/3455.html
4. Dan Telvock, “Judge declines to dismiss FOIA suit against Spotsylvania,” October 16, 2007
http://www.fredericksburg.com/News/FLS/2007/102007/10162007/325283
5. Jeneen Interlandi, “An Unwelcome Discovery,” New York Times Magazine, October 22, 2006.
©Copyright Benjamin Wright 2008.
