Business Practice 31

Litigation Hold

Contents

WHAT

When circumstances and/or events put TVA on notice that litigation is reasonably anticipated, TVA will preserve all relevant documents, records, and information, electronic or otherwise. Additionally, TVA will suspend applicable record retention schedules and will, if reasonable, suspend the routine operation of information system(s) that may potentially affect relevant data subject to a preservation obligation.





WHO

All TVA employees, including Board Members.





WHY

TVA and its employees are sometimes subject to claims and litigation as a result of carrying out TVA's business and this litigation may give rise to an obligation to produce documents, records, and/or other electronically stored information. TVA needs a mechanism through which it can collect and retain information that TVA is under a duty to preserve and produce. Failure to preserve relevant information when litigation is reasonably anticipated and to produce that information once litigation has commenced could subject TVA to adverse financial consequences as well as potentially serious legal penalties.





HOW

When the duty to preserve arises:

  • The duty to preserve all documents, records, and electronically stored information related to specific subject matter arises when the facts of the matter are such that litigation is reasonably anticipated.
  • The determination of when litigation is reasonably anticipated will be made by OGC on a case-by-case basis. The following are general examples of when litigation may be reasonably anticipated:
  • The known facts suggest that litigation will likely arise.
  • A writing is received that expressly and credibly threatens litigation.
  • TVA has made the decision to file suit, but has not yet filed a complaint.
  • A summons and complaint is received.



Determining the Scope of the Duty to Preserve

  • Once litigation is reasonably anticipated and a preservation duty arises, OGC determines the scope of subject matter covered by the preservation obligation.
  • The relevant organizations, with assistance from OGC, identify document custodians who are in possession of sources of documents or electronically stored information subject to the preservation obligation.
  • Potential sources include, but are not limited to:
  • Individual files (i.e., paper files, hard copies)
  • Desktop computers
  • Laptop computers
  • Home computers
  • Peripheral storage devices (i.e., CDs, DVDs, floppy disks, flash drives, external hard drives, zip drives)
  • Personal Digital Assistants
  • Cell Phones
  • Surveillance camera tapes
  • Off-site record storage
  • IS, with assistance from OGC, identifies the locations within TVA's network of sources of electronically stored information subject to the preservation obligation.
  • Potential sources include, but are not limited to:
  • Network Servers
  • Email servers
  • Web servers
  • Shared drives
  • Document management systems
  • Backup tapes
  • Voicemail systems
  • Disaster recovery systems
  • Other non-IS supported systems in use at TVA
  • OGC identifies those sources within OGC that may contain relevant documents, records, or electronically stored information.




Implementing a Litigation Hold and monitoring compliance:

In order to implement the Litigation Hold and monitor compliance with that hold, once the duty to preserve arises, OGC will:

  • Draft an appropriate litigation hold notice that identifies the subject matter covered by the preservation obligation and informs recipients of their obligations under the Litigation Hold.
  • Distribute the litigation hold notice to all document custodians and other appropriate personnel identified during the determination of the scope of the preservation obligation. This includes:
  • Relevant organization personnel identified as potential sources of documents, records, or electronically stored information.
  • IS personnel designated to search for, identify, and preserve all relevant electronically stored information.
  • Records personnel designated to search for, identify, and preserve all relevant TVA records.
  • OGC personnel identified as potential sources of documents, records, or electronically stored information.
  • Advise recipients through the litigation hold notice of their preservation obligations, including:
  • Immediate termination of any disposal of relevant documents, records, or electronically stored information, including the suspension of all retention schedules for all affected records, and, if reasonable, suspension of those portions of the routine operation of information systems that may affect relevant data subject to the preservation hold.
  • Identification of any relevant information in their possession.
  • Notification of the OGC contact of the relevant information in their possession.
  • Direct IS to take a ‘snapshot' of inboxes, hard drives, servers, and all other sources of electronically stored information identified as potential sources of relevant information.
  • Direct IS to identify and preserve any backup tapes/drives that contain relevant information.
  • Notify the OGC records liaison to identify and preserve all OGC files on relevant subject matter.
  • Periodically reissue the litigation hold notice to all affected personnel, reminding them of the duty to preserve and requesting updates on any information that has been discovered, collected, and preserved.
  • Monitor the collection and preservation of relevant documents, records, and electronically stored information by affected organizations and personnel.
  • Produce relevant information when requested, if and when litigation commences.
  • Determine when the Litigation Hold may be released.




Releasing the Litigation Hold:

  • OGC will determine and announce when an issued Litigation Hold may be released.





ROLES

Organizations and Employees

  • Report any information to OGC which suggests that litigation may be forthcoming or has been threatened.
  • Assist and cooperate with OGC when a Litigation Hold is issued by identifying any potentially relevant information in their possession, notifying OGC of the specific information in their possession, and preserving that information until the Litigation Hold has been released.
  • In the event there are violations of the Litigation Hold, notify OGC immediately.



Information Services

  • Identifies potential locations on the TVA network where relevant electronically stored information may reside.
  • Locates and preserves relevant electronically stored information.



Office of the General Counsel

  • Identifies when litigation is reasonably anticipated/ the duty to preserve arises.
  • Determines the scope of the duty to preserve.
  • Identifies those organizations involved and notifies relevant personnel within the organizations of the Litigation Hold and advises them of their duty to identify and preserve any potentially relevant information in their possession.
  • Notifies IS personnel regarding the Litigation Hold and of their duty to suspend normal operation of retention policies for all relevant information and to identify and preserve all relevant electronically stored information in their possession.
  • Identifies and preserves all relevant information in OGC's possession.
  • Collects all preserved and retained information when necessary for litigation.
  • Identifies when the duty to preserve has ended and notifies affected organizations that the Litigation Hold is released and regular retention schedules may resume.




RESOURCES

  • TVA Practices list
  • TVA Procedures list




REVISION HISTORY

July, 2007