7-3102: Litigation Hold

Purpose

The purpose of this policy is to provide direction about retaining documents when legal proceedings are threatened or actually occur. It specifies the circumstances under which information should be retained for litigation purposes.

Authority

• Chief Information Officer 

Scope

This policy is in effect when litigation is threatened, pending, or notice of litigation is delivered to County Counsel. Data must be held until the case is resolved. Data germane to the case will be stored separately, if possible, to allow the original media to be treated according to guidelines set forth in the Retention of Data Stored on Backup Media Policy. This policy applies to electronic documents, electronic mail, and paper documents. 

The Federal Rules of Civil Procedure were amended effective December 1, 2006 to specifically address the preservation and discovery of electronic records. The goal of the amendments is to recognize the importance of electronically stored information and to respond to the enormous costs of document review and protection of privileged documents. Similar changes were made to the California Code of Civil Procedure in 2009. 

Generally, the state and federal rules have been amended to specifically require production of electronic records to the same extent as paper records. The rules provide that the default form for producing electronically stored information is that in which it is ordinarily maintained or reasonably usable, and a party need not produce the same electronically stored information in more than one form; in other words, it is not necessary to produce documents both electronically and on paper. 

The Retention of Data Stored on Backup Media Policy was originally adopted by the County in February 2009 and revised in 2016. That policy provides that backup media are for disaster recovery purposes only and should not be retained more than six months, except that backup media which contain documents pertaining to threatened or actual legal proceedings must be retained. 

Policy

Regardless of retention requirements, e-mail and all other electronic or paper documents pertaining to threatened or actual legal proceedings must be retained until the litigation is finally concluded. If the Office of the County Counsel is representing the County with respect to threatened or actual legal proceedings, the Deputy County Counsel assigned to the matter shall immediately upon assignment notify the affected department(s) of the litigation, and advise the department(s) to retain all email and other electronic or paper documents pertaining to the legal proceedings until the litigation is finally concluded. If the Risk Management Office has assigned outside counsel to represent the County with respect to threatened or actual legal proceedings, the Risk Management Office shall upon assignment notify the affected department(s). Email and other electronic documents must be retained in a separate file, including relevant documents generated after litigation was threatened or filed.

As a general rule, the preservation obligation does not extend to backup media which are maintained solely for disaster recovery. However, the County does access backup media periodically to restore data. If the affected department(s) can identify where particular documents are stored on backup media, then the department must extract the pertinent data from that backup media and separately store that data on permanent media. It is counsel’s obligation to oversee compliance with the litigation hold in accordance with the following:

A. Issue a litigation hold at the outset of litigation or whenever litigation is reasonably anticipated. The litigation hold should be periodically re-issued so that new employees are aware of it, and so that it is fresh in the mind of all employees. 

B. Communicate directly with the “key players” in the litigation, and advise them of the duty to preserve documents. Periodically remind them of the preservation obligation. 

C. Instruct all employees to produce electronic copies of their relevant active files. Assure that all backup media required to be retained is identified, segregated and stored in a safe place.

References

• Retention of Data Stored on Backup Media Policy
• Federal Rules of Civil Procedure
• California Code of Civil Prodcedure​