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Retain or Delete? Managing Documents in the Digital Age

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Given the plummeting cost of digital storage, many educational agencies scan permanent records into electronic format and destroy the hard copy originals. The Education Code and Title 5 of the California Code of Regulations permit educational agencies to destroy paper records in certain circumstances — after their usefulness ceases, after they have been classified as “disposable,” or after they have been copied into an electronic storage medium. But even when the destruction is permitted by law, it may have negative repercussions if the agency knew or should have known the documents would be relevant to current or potential litigation.

Electronic copies for K-12 districts

Education Code section 35254 permits destruction of original records when a school district makes “photographic, microfilm, or electronic copies of any records of the district.” Under the Title 5 regulations, records include maps, books, papers, and documents of a school district required by law to be prepared or retained or which are prepared or retained as necessary or convenient to the discharge of official duty. (5 C.C.R. § 16020.) With limited exceptions, after an electronic copy is made, the original may be destroyed when provision is made for permanently maintaining the electronic copies. Electronic data storage must meet applicable security and accessibility requirements.

Electronic copies for community colleges

Section 59022 of the Title 5 regulations provides for electronic copying and storage of community college district records, which are defined to include maps, books, papers, data processing output, and electronic documents that a community college district is required by law to prepare or retain by law or official duty. (5 C.C.R. § 59020.) The electronic copying must meet certain minimum standards: (1) reproduction must be accurate in detail; (2) the chief executive officer must attach or incorporate in the copy a signed and dated certification of compliance with section 1531 of the Evidence Code, stating in substance that the copy is a correct copy of the original, or a specified part thereof, as the case may be; and (3) the copy must be placed in an accessible location and provision made for preserving permanently, examining, and using.

Duty to retain documents for litigation

When litigation is filed, threatened, or reasonably foreseeable, the laws governing the “spoliation of evidence” take precedence over the provisions allowing the destruction of hard copies. Spoliation of evidence is the destruction, significant alteration, or failure to preserve evidence in anticipation of litigation. The duty to preserve evidence exists at the time the parties know or reasonably should know litigation is foreseeable. (See Mosaid Technologies Inc. v. Samsung Electronics Co., Ltd. (D.N.J. 2004) 348 F.Supp.2d 332, 336; Silvestri v. General Motors Corp. (4th Cir. 2001) 271 F.3d 583, 591.)

If information relevant to the case exists in both electronic and paper forms, agencies and their employees and agents must preserve both forms in anticipation of the litigation. Preserving the records requires placing an immediate “litigation hold” on potentially relevant electronic and tangible things, and communicating this hold to any employees or agents who might have access to these items.

Failure to retain evidence, including both the electronic and hard copies of documents, may result in a court imposing penalties to deter and punish spoliation of evidence. These penalties include instructing a jury to draw an inference that the evidence destroyed by a party was unfavorable to that party. (Cedars-Sinai v. Superior Court (1998) 18 Cal.4th 1, 11.) A court can also enter a judgment in favor of the opposing party if the spoliation of evidence is intentional and egregious. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 497.) A court might also grant monetary or non-monetary sanctions. (Code of Civil Procedure §§ 2023.010(d), 2023.030(a)-(d); Cedars-Sinai, supra, 18 Cal.4th at p. 12.)

Even if the spoliation occurred in the normal course of business, sanctions may still result if the party should have initiated a litigation hold, or failed to enforce its litigation hold. For example, the routine destruction of electronic documents (such as email) after a certain interval may need to cease during a litigation hold.

A recent case illustrates the importance of retaining originals even when electronic copies exist.  A federal court imposed sanctions on a party who made a black and white scan of her journal and then destroyed the hard copy. (Mitcham v. Americold Logistics, LLC (D. Colo., Sept. 20, 2017) 2017 WL 4163359.) The plaintiff claimed she scanned her journal — which purportedly included information relevant to the litigation — before filing her lawsuit and then destroyed the hard copy, as she customarily did with all of her journals. Though she retained and produced the scanned copy, the court found that she engaged in spoliation of evidence because the other party would be unable to tell if the journal was complete, altered, or annotated, or to gather clues from the ink to such as whether the entries were written with the same pen.

Preserving evidence in the digital age requires diligence and practical planning. Before destroying hard copies of scanned documents, districts should carefully consider whether the records are potentially relevant to a complaint, claim, or injury that might result in litigation.  If a lawsuit has been filed or there is a reason to believe a lawsuit may be filed at some future time, the district should seek legal advice.

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