1. PURPOSE
Both record and non-record documentary materials in paper or electronic format frequently become the subject of litigation. Employees create and maintain an increasing portion of business information using computers. This electronically stored information (“ESI”) must be managed alongside traditional paper records to ensure compliance with Federal laws and records management regulations. While not all papers or ESI are agency records, they may nevertheless be relevant evidence subject to discovery that is compelled or sanctioned by a court or administrative tribunal in litigation. Unmanaged and unidentified ESI residing on USDA computers also poses a threat to the Department's ability to document and reconstruct business and decision-making processes.
The purpose of
this policy is to prescribe Departmentwide enterprise policies and
responsibilities related to the retention of record and non-record documentary
materials, including ESI, for discovery or other litigation-related purposes.
2. REFERENCES
DR 3080-001 [HTM] [PDF]
(04/11/07) Records Management
DM 3570-001 [HTM][PDF]
(02/17/05) Disaster Recovery and Business Resumption Plans
DR 1700-002 [HTM] [PDF]
(06/17/97) OIG Organization and Procedures
36 CFR 1222.12(b)(1)
Definition of “Documentary Materials”
Federal Rules of Civil Procedure:
a. Chapter
III, Pleadings and Motions, Rule 16, Pre-Trial Conferences; Scheduling;
Management.
b. Chapter
V, Depositions and Discovery, Rule 26(a), General Provisions Governing
Discovery; Duty of Disclosure; Required Disclosures; Methods to Discover Additional Matter.
3. SCOPE
The retention policy set forth herein
applies to all employees and contractors of the USDA and applies to all documentary
materials, including record and non-record ESI made, sent, or received in the
transaction of USDA business.
4.
DEFINITIONS
Discovery: Discovery is the process of identifying,
locating, securing and producing evidence, including testimony, things, information,
and materials for utilization in the legal process. The term is also used to
describe the process of reviewing all materials which may be potentially
relevant to the issues at hand and/or which may need to be disclosed to other
parties, and of evaluating evidence to prove or disprove facts, theories or
allegations. There are several formalized methods of conducting discovery, the
most common of which are interrogatories, requests for production of documents
and depositions.
Electronic Discovery (ediscovery): The process
of collecting, preparing, reviewing, and producing ESI in the context of the
legal process. See Discovery.
Electronic Record: Information
recorded in a form that requires a computer or other machine to process it and
that otherwise satisfies the definition of a record.
Electronically
Stored Information (“ESI”):
Any information that is created, received, maintained or stored on local
workstations, laptops, central servers, personal digital assistants, cell
phones, or in other electronic media. Examples include, but are not
limited to: electronic mail (“email”), calendars, word processing documents and
spreadsheets, databases, videos, video files, digital images, audio files, text
messages, voicemails, activity logs, etc. ESI includes metadata.
Preservation
Obligation: The
obligation of agencies, managers and individual employees to ensure the
preservation of documentary materials that might be or might become relevant to
pending or threatened litigation. If the
documentary material was created in electronic format, it must be preserved in
that original native format.
Litigation
Hold: The procedure for locating and ensuring the retention of ESI
subject to a preservation obligation
See Appendix A for litigation hold procedures/guidelines.
Record: All books, papers, maps, photographs,
machine-readable materials, or other documentary materials, regardless of
physical form or characteristics, made or received by an agency of the United
States Government under Federal law or in connection with the transaction of
public business and preserved or appropriate for preservation by that agency or
its legitimate successor as evidence of the organization, functions, policies,
decisions, procedures, operations, or other activities of the Government or
because of the informational value of data in them. Library and museum material
made or acquired and preserved solely for reference or exhibition purposes,
extra copies of documents preserved only for convenience of reference and
stocks of publications and of processed documents are not included. (44 U.S.C.
3301)
5. POLICY
The retention period for ESI
will be consistent with Departmental and agency policies for records management
or with Departmental and agency policies for maintaining and retaining data on
backup media for purposes such as disaster recovery. See,
e.g.,
DR 3080-001, Records
Management, and DM 3570-001, Disaster Recovery and Business Resumption Plans.
ESI that constitutes a
"record" is subject to USDA's records management policies and to the
records retention schedules that have been established for each Department
agency and staff office. Any ESI containing information that documents the
business of the Department and is, therefore, an “agency record,” must be moved
to an auditable file structure, such as an electronic file designated as
containing a record series, or a paper document file in an auditable paper
series, in accordance with its applicable Records Disposition Schedule. Records not properly scheduled for
disposition may not be destroyed. Records may be destroyed only in accordance with
National Archives and Records Administration (“
A litigation hold for
described documents or ESI overrides any records retention schedule or any
other agency policy that may otherwise call for the transfer, disposal, or
destruction of the relevant documents or ESI until the hold has been removed by
the relevant Division or Field Office of the Office of the General Counsel
(“OGC”), Office of Inspector General (“OIG”), or other authorized authority
that ordered the hold. A litigation hold
is generally accompanied by a records search for all responsive
information. Records searches initiated
pursuant to a hold must be coordinated with agency officials, including the
relevant program officials, the information technology (“IT”) staff, and the
agency records officer. A litigation
hold should trigger notice as well to the USDA Records Officer. Each organization is responsible for
notifying its subordinate activities that a hold exists or has been removed. See litigation hold guidelines in Appendix A.
Many IT organizations back up
email and other ESI for the purpose of restoring electronic systems in the event
of disaster. Any decision concerning
retention periods for electronic backup media should be established based upon
consideration of reasonably anticipated business needs for data recovery in the
event of system failure, as well as upon legal considerations such as the extent
the agency or component has otherwise archived the ESI. However, backup tapes are not ideally suited
as a record retention mechanism because of the difficulty and expense of
reconstituting them to readable format.
Thus, agencies are encouraged to seek true archiving solutions for ESI. Additionally, email archived to the
individual workstation should not be considered part of the institutional
backup – but a part of the individual’s filing system. However, such individually
maintained material is potentially discoverable, and therefore may be the
subject of a litigation hold.
6. SANCTIONS
Failure to comply with this
policy in preserving documents and ESI can result in unfavorable discovery
orders, sanctions against the Government, disadvantage to the government's
position in litigation or judgment against the Government. It can also result in monetary or other
contempt sanctions against individuals who failed to take appropriate steps to
locate and segregate information subject to litigation hold. In extreme cases, agency performance based
action or disciplinary sanction may be warranted under 5 U.S.C. 4301, et seq. or 5 U.S.C. 7501, et seq.
7. RESPONSIBILITIES
a. Office of the Chief Information Officer will:
o
Advise
on records management issues and develop Departmentwide records management
policies, procedures, guidance, and training.
o
Advise
on backup media management and retention policies, procedures, guidance, and
training.
o
Work
with program, OGC and OIG staff to help ensure that paper and electronic
records and other non-record documentary materials, including ESI, are
accessible for ediscovery purposes.
b. Agency
and Staff Office Heads will:
o
Advise
on backup media management and retention policies, procedures, guidance, and
training.
o
Cooperate
with OGC and OCIO in locating and preserving paper and electronic records as
well as non-record ESI subject to a litigation hold.
c. Agency/Staff
Office Records Officers will:
o
Develop
and maintain the mission area, agency, and staff office records management
program in conformance with the Department's policies and standards.
o
Work
with program, IT, and OGC staff to help ensure that paper and electronic
records are accessible for ediscovery purposes.
d. USDA
Employees will:
o Maintain paper and electronic records and non-record ESI according to prescribed Department policy and procedures, including litigation holds.
e. OGC will:
o
With
regard to litigation holds initiated by OGC, work with program, IT, and Records
Management staff to help ensure that paper and electronic records, as well as
non-record ESI, is accessible for ediscovery purposes.
o
Ensure
that the Departmental Records Officer is notified of all litigation hold
requests and hold removals.
f. OIG
will:
o With regard to litigation holds initiated
by OIG, work with program, IT, and
Records Management staff to help ensure that paper and electronic records, as
well as non-record ESI, is accessible for ediscovery purposes.
o Ensure that the Departmental Records
Officer is notified of all litigation hold requests and hold removals.
-END-
Appendix
A
DOCUMENTARY
MATERIAL HOLD AND SEARCH POLICY GUIDANCE
a.
44
U.S.C. 2909
b.
Title
44, U.S.Code, Chapter 33
c.
36
CFR 1228.54
d.
Federal
Rules of Civil Procedure
(1)
Chapter
III, Pleadings and Motions, Rule 16, Pre-Trial Conferences; Scheduling;
Management.
(2)
Chapter
V, Depositions and Discovery, Rule 26(a), General Provisions Governing
Discovery; Duty of Disclosure; Required Disclosures; Methods to Discover
Additional Matter.
e.
The
Inspector General Act of 1978, as Amended (5 U.S.C., Appendix 3; § 6(a), “Authority
of Inspector Generals; information and assistance from Federal agencies;
unreasonable refusal; office space and equipment.”)
f.
DR
1700-002 [HTM]
[PDF] (06/17/97)
OIG Organization and Procedures
3. To whom does this guidance apply?
This guidance refers collectively to “USDA
staff” or “USDA staff members,” who include:
a.
All
employees;
b.
Contractors
where contracts specify which documentary deliverables or other ESI belong to
the Government.
4. What is a hold or
search?
A
“hold” is an agency’s temporary suspension of disposition action(s) related to
documentary materials, as well as segregation and preservation of such
materials, because of legal, audit, or investigative needs. Documentary materials, regardless of physical
location, are required to be kept for as long as a hold is in place. Non-compliance with a hold could result in
penalties on individual staff (see paragraph 16) or on USDA as an agency (see
paragraph 17). Subsequent to, or
contemporaneous with, the issuance of a hold, the agency may be requested to
“search” the held material for specific, relevant documentary material, and to
segregate it for safekeeping.
5.
Is a freeze considered a type of
hold?
Yes.
A “freeze” is a more specific implementation of the broader “hold”
concept. A freeze refers to a set of
standard procedures whereby a
6. What circumstances may warrant the issuance
of a hold?
A hold may be issued when:
a. USDA is a party to a lawsuit that names
USDA expressly as a party or in which the
b. An administrative proceeding, such as a
case involving an equal employment opportunity matter, a Merit Systems
Protection Board matter, or a contract before the Civilian Board of Contract
Appeals may require the preservation of designated records and related
documentary materials.
c. The OIG, independent public accountants,
or the Government Accountability Office (“GAO”) conducts a financial,
performance, or contract or grant audit.
d. OIG leads an administrative or criminal
investigation.
e. Congress
has requested the production of certain documents as part of its oversight
responsibilities.
f. Another
Federal agency with appropriate investigative authority requests a hold (for
example, the Office of Special Counsel)
g. A
dispute in any matter gives rise to a reasonable anticipation of litigation.
7. What are “documentary materials”?
According to 36 CFR 1222.12b(1), “documentary
materials” is a collective term for records, non- record materials, and
personal papers that refers to all media containing recorded information,
regardless of the nature of the media or the method(s) or circumstance(s) of
recording.
8. What records and other
documentary materials may be subject to holds?
This guidance applies to relevant USDA
operational records and non-record materials, in all media (see para. 9 for
types of media), that may constitute evidence or lead to the discovery of
relevant evidence in a particular lawsuit, administrative proceeding, audit, or
investigation.
a.
Operational records – Those records created or maintained by
USDA staff while conducting USDA business.
b.
Non-record materials - Those Government-owned documentary
materials that do not meet the statutory definition of “records” (44
U.S.C. 3301) or that have been excluded from coverage by the
definition. Non-record materials
expressly excluded from the statutory definition of records are:
(1) library and museum materials made or acquired
and preserved solely for reference or exhibition purposes,
(2) extra copies of documents kept only for
convenience of reference, and
(3) stocks of publications and processed
documents
c.
“Working files and similar materials,” including preliminary drafts, rough
notes, worksheets, correspondence and memos, reports, and other similar
materials (see 36 CFR
1222.34(c)), fall within the scope of “documentary materials” in paragraph
7 above, regardless of whether such materials qualify as USDA operational
records. USDA staff must preserve these
working files and similar materials if USDA issues a hold.
9. What are the formats and media for records
and other documentary materials covered by this guidance?
“Formats” and “media” refer to the physical characteristics of documentary
materials. Particular holds, as each
case arises, may call for retention of data in various electronic formats or
media to be determined. After
consultation with the appropriate agency Records Officer, supervisors and
managers must provide to their staffs more specific information regarding
formats and media for records and other documentary materials subject to a
hold. Types of formats and media may
include, but are not limited to:
a.
textual
(paper);
b.
electronic
formats and storage media:
(1) email messages;
(2) word processing files, spreadsheets, and
databases;
(3) digital images;
(4) Web pages;
(5) network server information, including
metadata;
(6) voicemail messages;
(7) backup tapes;
(8) hard drives;
(9) removable computer storage media (e.g.,
CD-ROM’s, tapes, disks, and cards);
(10) personal digital assistants (PDA’s)
and Blackberry-type devices;
c.
photographic;
d.
audiovisual
(e.g., videotapes and sound recordings);
e.
cartographic
(e.g., maps and architectural and engineering drawings); and
f.
micrographic
(e.g., microfilm and microfiche).
10. Who is authorized to issue and remove a hold
affecting USDA operational records and other related documentary materials, and
authorize a search of such held materials?
A hold or search may be directed by an OGC staff attorney,
OIG, an agency human resources representative, an agency civil rights
investigator, or the head of the agency or staff office. Any request for a hold by an agency
contractor counsel or contractor representative must be made through OGC or the
applicable agency human resources office.
A litigation hold may be removed by the person or current holder of the
position that issued the hold, or that person’s supervisor.
11. To whom must a hold or search request be
issued?
a. The
hold must be addressed to:
(1) The
agency or staff office unit directly responsible for the program or subject
matter that is the subject matter of the hold, i.e., the “owner” of the dispute.
(2) Any
key individuals or “players” likely to be holding documentary materials
relevant to the subject of the hold. Key
individuals or key players include persons transactionally involved in the
relevant event or dispute, persons having custody of relevant records because
of position or opportunity, and any other person who might be called to testify
at the trial or hearing of the matter because of his or her knowledge of the
matter in dispute.
(3) The
agency CIO or equivalent.
(4) The
agency Records Officer with a copy to the Departmental Records Officer.
(5) When
applicable, any collateral Department agency or staff office that may manage
Department systems that could reasonably be expected to have relevant
documentary evidence (e.g., Office of
the Chief Financial Officer (financial and travel transaction records),
Departmental Administration (procurement transaction records and personnel
records)).
b. The
hold must be copied to the deputy administrator for management or equivalent
for the involved organization(s).
c. If
not a required recipient, a copy of the hold may be sent to the agency or staff
office head for informational purposes.
12. How is a hold request made?
a. Request must be in writing - The request for a hold or search must
be in writing, signed, and on agency letterhead. An email request alone is not sufficient but
an emailed PDF of a signed request on letterhead is.
b. Scope of hold - The hold should cover only those
documentary materials that are responsive to the situation warranting the hold
(e.g., litigation, audit,
investigation).
c.
Contents of hold - A hold request must include the following
information:
(1) Basis
for the hold (e.g., litigation,
audit), including copies of relevant supporting documents (e.g., court order, letter from GAO) if applicable;
(2) Disposition
action(s) to be suspended;
(3) Concise
descriptions of documentary materials (including records series, if applicable
and known), including information about content (i.e., subject matter and topics), media format, date spans, and
volumes;
(4) Estimated
period of time for the hold or event(s) triggering removal of the hold, if
known;
(5) Known
physical or electronic locations in agency space, including buildings, rooms,
interior areas, (e.g., at
individuals’ workstations, in centralized file cabinets, in agency) email systems, databases and, if applicable,
in FRC’s; and
(6) Names
of contact person and alternate who are knowledgeable concerning the subject
matter of the hold and can answer questions and provide advice in connection
with the execution of the hold.
13. What actions should be taken by the recipient of a hold?
a. Owner of the dispute or owner of relevant Departmentwide
systems - The head of
the agency or staff office unit directly responsible for the program or activity
that is the subject matter of the hold, i.e.,
the “owner” of the dispute, or the owner of relevant Departmentwide systems who
receives a hold, sends an email or memorandum to staff regarding the reasons
for the hold, suspends disposition action(s), describes affected documentary
materials, and likely duration of the hold.
Supervisors and managers issue specific instructions for carrying out
the hold within their organizations.
They must also inform new employees and must periodically remind staff
about the hold requirements.
b. Key individuals - Take actions necessary to ensure
documentary material responsive to the hold that is within their control is
retained in its native format, segregated for production when requested, and
that any routine destruction of documentary material that they created or
control is halted.
c. Records Officer
(1) Requests a “temporary extension of retention
period(s)”
(a) In accordance with 36 CFR 1228.54(c)(1) through (4), the agency
Records Officer sends a letter, signed by the appropriate official, to the
Director of the Life Cycle Management Division at NARA requesting approval of a “temporary
extension of retention period(s).”
(b) The agency Records Officer also sends to NARA
copies of SF 135’s regarding those operational records and documentary
materials that are subject to the hold and stored at any or all FRC’s .
(c)
(2) Notifies the Assistant Archivist for Regional
Records Services if the hold applies to operational records and other
documentary materials stored at any or all FRC’s - The agency Records Officer sends to the
Assistant Archivist for NR a courtesy copy of the letter that was addressed to NARA(see
subpar. a), along with copies of applicable SF 135’s.
d. Agency/Staff Office CIO - The agency CIO determines relevant agency information technology systems that may contain information responsive to the hold and suspends routine disposition, deletion, or destruction of such information, including suspension of any recycling of backup media, as requested by the issuer of the hold, and works with the requester to segregate and preserve responsive information.
14. What happens if resources (budgetary, human,
technological, or other) are inadequate to meet the demands of conflicting hold
or search requests within the time required?
On occasion it may not be possible for the recipient of a
hold or search request, in particular the agency CIO, to be able to meet all
hold or search requests on a timely basis.
In the event of such a conflict, the recipient of the hold shall request
OGC to prioritize hold and search requests as follows:
a. In
the case of a conflict experienced by the OCIO, OGC shall convene a meeting of
the Assistant General Counsels for Civil Rights Litigation, General Law,
Conservation and Environment, Community Development, and International Affairs
and Commodity Programs to review and prioritize the competing hold and search
requests, in consultation with the Counsel for the IG when one of the competing
requests is from OIG.
b. In
the case of all other conflicts, the recipient shall notify the Assistant
General Counsel responsible for legal advice to the program who shall convene a
meeting with the Assistant General Counsels for Civil Rights Litigation and
General Law, as well as others as appropriate, to review and prioritize the
competing hold and search requests, in consultation with the Counsel for the IG
when one of the competing requests is from OIG.
15.
What must USDA staff members do to carry out a hold applying to operational
records and related documentary materials maintained in office space?
Until further notice:
a. Do not destroy or manipulate any documentary
materials, including those temporary records that are eligible for destruction
in accordance with the USDA
Records Schedule or the General
Records Schedules.
b. Follow the supervisor’s or manager’s
instructions about maintaining records and other documentary materials subject
to the hold (e.g., centralizing or
keeping the records and materials in place; sending the records and materials
to OGC, OIG).
c. Do not transfer permanent records to
d. Do not transfer records to an FRC,
unless a transfer is permitted in accordance with the hold instructions.
e. Do not donate to interested individuals
or organizations any documentary materials or those temporary records that are
eligible for destruction.
16. What are the consequences if USDA staff members
do not preserve operational records
and other related documentary materials subject to a hold?
Individual staff could face severe
penalties imposed by a court, or agency performance-based action or disciplinary
action for not preserving records and documentary materials subject to a
hold.
a. DOJ
- Failure to preserve
operational records could constitute an unlawful destruction of records that
must be referred to the Attorney General under 44 U.S.C. 2905(a) and 3106.
b. Civil
or criminal court - If a
USDA staff member fails to comply with a hold that is in place because of a
court order, this individual could be individually sanctioned or held in
contempt by the court. Finally,
destruction of records under certain circumstances is potentially a criminal
violation for which a staff member could be prosecuted under 18 U.S.C. 1519.
17. What are the consequences to USDA, as an
agency, if operational records and other related documentary materials subject
to a hold are not preserved?
USDA could be subject to sanctions if
records and other documentary materials, deemed as “evidence,” are
missing. For instance, the court could
employ one or more of the following sanctions:
a. Issue an adverse finding (e.g., a court order) against USDA on the
merits of the case;
b. Instruct a jury that it is permitted to
draw an “adverse inference” against USDA;
Example: In the hypothetical court case, XYZ Corporation v. USDA, operational
records and documentary materials pertaining to USDA officials’ communications
with XYZ Corporation (from 1999 to 2004) have not been preserved as
required by agency policy. The judge
then instructs the jury that it may logically conclude (or “infer”) that the
content of USDA’s missing records and materials (as “evidence”) would have
supported XYZ Corporation’s position against USDA.
c. Preclude USDA from introducing certain
evidence or calling certain witnesses;
d. Hold individual USDA officials and USDA
in contempt; or
e. Impose monetary sanctions against USDA,
or against involved individuals.
18. How is a hold removed?
When the need for the hold has expired, OGC, OIG, or any
other official authorized to request a hold under paragraph 10, shall send a
memorandum to all of the original recipients of the hold informing them that
the hold has been removed and note the explanation for the removal.
19. How is the
The
agency Records Officer sends a letter to the Assistant Archivist, explaining
that the hold has been removed.