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Litigation Review Committee Litigation Review Committee September 2018 September 13, 2018 11:00 a.m. - 12:30 p.m. Peterson Room, McNamara Alumni Center LIT - SEP 2018 1. Report on Legal Matters Docket Item Summary - Page 3 Report on Legal Matters - Page 4 2. Resolution to Conduct Non-Public Meeting of the Litigation Review Committee to Discuss Attorney-Client Privileged Matters - Review/Action Docket Item Summary - Page 15 Resolution - Page 16 Page 2 of 16 BOARD OF REGENTS DOCKET ITEM SUMMARY Litigation Review September 13, 2018 AGENDA ITEM: Report on Legal Matters Review Review + Action Action X Discussion This is a report required by Board policy. PRESENTERS: Douglas Peterson, General Counsel PURPOSE & KEY POINTS Board of Regents Policy: Attorneys and Related Services requires the Office of the General Counsel (OGC) to report annually on its activities. This report provides the Litigation Review Committee an opportunity to discuss legal developments and trends affecting the University, and OGC’s performance in providing legal services to the University during FY 2018. Page 3 of 16 Office of the General Counsel ANNUAL REPORT 2018 ANNUAL REPORT 2018 1 Page 4 of 16 Mission of the Office of the General Counsel TO SAFEGUARD the constitutional authority of the Board of Regents and those who act on its behalf to govern the University TO REPRESENT the University in adversarial forums zealously and in accordance with the highest standards of integrity and ethics TO PROTECT the University’s legal interest in all transactions, thereby protecting the investment of the citizens of Minnesota in the University TO PROVIDE legal services and counsel to University officials so that all the institution’s activities comply with applicable laws and University policies TO PROTECT the principles of due process in the University’s treatment of faculty, staff and students and all other members of the University community ANNUAL REPORT 2018 3 2 UNIVERSITY OF MINNESOTA OFFICE OF THE GENERAL COUNSEL Page 5 of 16 It is important that the way we go about our work reflects the core values of the University of Minnesota. Crookston • Duluth • Morris • Rochester • Twin Cities Office of the General Counsel McNamara Alumni Center 200 Oak Street S.E. Suite 360 Minneapolis, MN 55455 Office: 612-624-4100 Fax: 612-626-9624 E-mail:[email protected] Rochester Morris Dear Colleagues, Twin Cities This year it is fitting that we Doug Peterson Universities excel with pioneering research, robust dialogue, and challenges to convention. Diversity, in celebrate the five-campus system. all of its dimensions, makes us strong. Service is at the core of land grant institutions in particular. How The ongoing system-wide strategic the privileges and responsibilities of what it means to be the University of Minnesota intersect with the law is the work of the Office of the General Counsel. We thank you for the opportunity to join you in planning process underscores the the University’s mission of teaching, research, and service. importance of what binds us together. We traditionally highlight one campus on the cover of the OGC Annual Report. This year it is fitting that we celebrate the five-campus system. The ongoing system-wide strategic planning process underscores the importance of what binds us together. Further evidence of our ties can be found in the Crookston Duluth advice and services provided by OGC. From employment law counseling to First Amendment issues to Title IX matters, there are common threads to the legal questions we face across the University of Minnesota. The proof is found in this report. The spirit of service finds OGC serving others outside of the University community as well. It is humbling for me to be associated with colleagues who take time to raise funds and work on service I am reminded again this year that our University is truly of Minnesota. Our legal responsibilities find projects for community organizations such as Support-A-Family, Feed My Starving Children, us assisting the Academic Health Center to chart the University’s care for Minnesota’s health, advising UnderDog Rescue, Neighborhood House, YMCA of Minneapolis, and the Volunteer Lawyers an institution employing 4,000 faculty and 14,000 staff employees serving 62,000 students, and serving Network. a dynamic R1 university dedicated to promoting public-private partnerships and commercializing its intellectual property. The University of Minnesota makes a difference. The Office of the General Counsel pledges to do our part to advance its core values by offering you the quality legal representation your contributions to the The ability of the Office of the General Counsel to provide high caliber legal representation across University’s mission deserve. a five-campus system moving at a cutting edge pace hinges upon the quality of OGC’s lawyers, paralegals, and administrative and professional staff. I trust that Goldy has an especially proud, With warmest regards, buck-toothed smile this year for six of our veterans who have worked at the University of Minnesota for more than twenty years: Barbara Shiels (35), Greg Brown (27), Nancy Larson (25), Elizabeth Anderson (24), Susan McKinney (23), and Don Amundson (22). Not only do they set an example of excellence, they also mirror the esprit de corps that makes the OGC a good place to come to for advice and counsel. Douglas R. Peterson ANNUAL REPORT 2018 5 4 UNIVERSITY OF MINNESOTA OFFICE OF THE GENERAL COUNSEL Page 6 of 16 Legal Trends Affecting Higher Education The University is Minnesota’s Economic Engine European Union Adopts New Data Privacy Regulation. The European Union’s General Data Protection Regulation (the “GDPR”) went into effect on May 25, 2018. This new rule directly affects the University and changes, in small and in significant ways, how $8.6BILLION the University protects the privacy of University current and prospective faculty, staff and students who University’s economic impact in the state. are EU residents. The University operates in the EU. Its Global Programs and Strategy Alliance has formal exchange programs with academic institutions there. The Carlson School of Management offers executive degree Jobs supported77,664 by University in the state. programs in the EU, in Austria. The University recruits and enrolls EU residents. Since 2004, the University also has operated a French non-profit association in an office in Montpellier, France. The University’s activities in the EU subject it to the GDPR. MILLION “GDPR is going to introduce very fundamental changes to the way the internet works for everyone,” $470.2 State and local revenue tied to the according to Doug Kramer, a prominent Bay-area technology lawyer. This rule profoundly changes how University’s presence the University gathers, stores, uses and makes available data from a resident of the EU. Violations of the rule may result in steep fines. The GDPR grants EU residents broad privacy rights and access and security obligations. Within 72 hours of first learning of a breach that may result in risk to EU residents’ rights or freedoms, the University must notify each affected person. Under the “right to access,” the University must confirm, A Few Highlights if asked, whether it has gathered and is holding personal information on an EU resident. Under Employment claim. another GDPR right, the “right to be forgotten,” in certain circumstances the University must delete In early December 2017, the University prevailed in personal data when requested by the subject of that data. a jury trial in Hennepin County District Court involving claims brought by a former employee who had been an instructor in the School of Kinesiology. The The GDPR changes how consents to gather and use personal data are written and obtained. They employee argued that she was constructively discharged (meaning that she was must be “intelligible and easily accessible.” Clear and plain language must be used. A process to allow forced out without a formal termination) and was the victim of discrimination, someone to withdraw consent must be available. Individuals under 16 cannot consent; their parents or a hostile work environment, and retaliation, all on the basis of her sex. She also guardians must consent to provide personal information to access certain digital platforms. argued that the Director of the School of Kinesiology intentionally inflicted emotional distress on her. School of Kinesiology In the meantime, the University is acting to improve system-wide data privacy. Earlier this year, students in the lab President Kaler empaneled an ad hoc committee to recommend and oversee University compliance The trial lasted eight days, with extensive testimony from University faculty, staff, and former students. with the law. According to an Information Statement related to that work,“The GDPR Committee The jury found in favor of the University and the Director on each of the employee’s four claims, and is taking a risk-based compliance approach to the regulation—implementation priorities will be set the employee was awarded no damages. based on risk and available resources. Long-term planning for compliance will take into consideration Patent Cases. guidance and interpretation of the regulation from the EU Data Protection Boards.” OGC is also As reported in previous years, the University is enforcing its intellectual property working with departments and others in administration to update online privacy policies and to rights in several patent cases involving technology integral to wireless communication, hepatitis drugs, establish model contractual data security provisions and due diligence requirements. and hard disk drives. Currently, the cases are on hold as the U.S. Court of Appeals for the Federal Circuit considers a legal issue of great importance both to the University and to institutions and states For more information on the GDPR and what steps the University is taking to comply, please visit the throughout the nation.
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