Minnesota Government
Data Practices Act
and Litigation Holds In An
Electronic Environment
MACA-MCHRMA Fall Conference
Ruttger’s Bay Lake Lodge
September 10, 2015
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PRESENTED BY:
Karen Clayton Ebert
MCIT Staff Counsel for Program Management
[email protected]
The information contained in this document is intended for general information
purposes only and does not constitute legal or coverage advice on any specific matter.
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The Minnesota Government Data
Practices Act (MGDPA)
A series of laws that govern:
• The public’s right to access government data
• The government’s obligation to produce such data
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What Is Data?
Definition:
“All data collected, created, received, maintained or
disseminated by any government entity regardless of
physical form, storage media or conditions of use.”
(Minn. Stat. § 13.02, subd. 7)
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Data Is Presumed to Be Public
• Generally, there is a
presumption that
government data is
public data, unless
otherwise classified by
state or federal statute
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• Examples of exceptions
(presumed private
unless otherwise
classified):
– Personnel data
– Benefit assistance data
– Health and medical data
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2 Broad Data Categories
• Data on individuals
– Public
– Private
– Confidential
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• Data not on individuals
– Public
– Nonpublic
– Protected nonpublic
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Access to Data
Public Data
Private or
Nonpublic
Data
Confidential
or
Protected
Nonpublic
Anyone who
requests it
Data subject,
government
employee or official
required to access
for work, or entities
authorized by law
Government
employee or official
required to access
for work, or entities
authorized by law
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What Is Data on Individuals?
“All government data in which any individual
is or can be identified as the subject of that
data, unless the appearance of the name or
other identifying data can be clearly
demonstrated to be only incidental to the
data and the data are not accessed by the
name or other identifying data of any
individual.” (Minn. Stat. § 13.02, subd. 5)
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Examples: Private Data on Individuals
• Data on client
applications for
veterans benefits and
assistance
• Employee’s
performance
evaluation
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• Application
information for
assistance to
individual farmers
who are experiencing
economic or
emotional distress
• Checking account
numbers
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Examples: Confidential Data on
Individuals
• Names of reporters
alleging maltreatment
of minors or
maltreatment of
vulnerable adults
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• Identities of individuals
who register complaints
concerning violations of
the use of real property
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Rights of Data Subjects
• An individual has the right:
– To consent to a new use or new release of data
• Written permission allowing release to either an
individual or purpose not described in the Tennessen
warning
– To be informed whether he or she is the subject
of stored data and its classification
– To challenge the accuracy and/or completeness
of data
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Data Requests
• All requests should be directed to the RA or
designee
• Entities are required to have procedures
– Direct requestor to those procedures or forms
– Charge only what is allowable by law, can require
pre-payment
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Employee-owned Devices
• Government data includes all data collected,
created, received, maintained or disseminated
by a government entity
– It is not defined by where it is stored, in what
format or how it is used
• Government data on an employee’s personal
device is subject to the MGDPA and may need
to be produced.
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Employees Using Personal Devices
•
•
•
•
•
•
Phone calls and voice mail
Text messaging
E-mail
Document review
Drafting documents
Access to computer servers or databases
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Data Retention, Preservation and
Retrieval
• Both government entity and employee may
have an obligation to retain, preserve or
produce data and/or device
– Minnesota Government Data Practices Act
(MGDPA)
– Litigation hold or discovery
– Investigation
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Minnesota Government Data Practices
Act; Issues for Electronic Data
• Imposes obligation to
produce government data
and an obligation to make
data easily accessible for
convenient use
• Includes all data
collected, created,
received, maintained or
disseminated by any
government entity
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• Government data is not
defined by where it is
stored, in what format or
how it is used
• Responsive government
data stored on
employee’s dual-use
device must be produced
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Minnesota Government Data Practices
Act
• Government entity: Failure to produce data
may be a violation of MGDPA
• Employee
– Failure to cooperate with employer could be
grounds for disciplinary action
– Willful violation of MGDPA may be just cause for
disciplinary sanctions
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Data Privacy and Security
• Government entities and employees are
obligated to keep certain government data
private, confidential and secure
• Minnesota Government Data Practices Act
– requires that government entity establishes
and implements appropriate safeguards
– Restricts access to data classified as private or
confidential
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Data Privacy and Security
• Health Insurance Portability and Accountability
Act (HIPAA)
– Requires covered entity or business associate to
implement policies and procedures that restrict
unauthorized access to electronic protected
health information
– Includes “individually identifiable health
information”
• Other privacy or security requirements in law or
agreement
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Inadvertent Release of Data
•
•
•
•
•
•
Lost or stolen device
Access by friends and family
Malware or computer viruses
Employee upgrades device
End of employment relationship
Remote backup and storage
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Notice of Breach
• Must provide written notification to individual
who is subject of private or confidential data
that is reasonably believed to have been
breached
• All data breaches must be investigated
• Upon completion of investigation, entities
required to prepare a report
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What Is a Data Breach?
• Data breach is defined as any
“unauthorized acquisition” of data by an
“unauthorized person”
(Minn. Stat. §13.055)
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Unauthorized Acquisition Defined
• “Unauthorized acquisition” means a
person obtained, accessed or viewed
government data without informed
consent of the subject of the data
• With intent to use the data for a
nongovernmental purpose
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Unauthorized Person Defined
• An unauthorized person is anyone accessing
data:
– Without a work assignment that reasonably
requires access, or
– Regardless of assignment if an individual accesses
for a purpose not described in an entity’s access
policies.
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Written Report About a Breach
• If a breach occurred due to an employee,
contractor or agent of the government, the
report must include
– Facts of breach and type of data accessed
– Number of individuals whose data was breached
– Upon final disposition of discipline, if any, the
name of each employee and the discipline actions
taken against him or her
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Social Media
• Posting not public government data on
personal social media could violate the
MGDPA
– May be grounds for disciplinary action, even if
employee was off duty and using nongovernment device
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Penalties for Violating the MGDPA
• Civil liability: damages,
costs, compliance,
injunctive relief and
attorney fees
– If a willful violation,
liable for exemplary
damages of not less than
$1,000 and not more
than $15,000 for each
violation
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• Administrative remedy:
civil penalty of up to
$300 and reasonable
attorney fees
• Criminal penalty: an
intentional violation of
the MGDPA is a
misdemeanor
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Penalties for Violating MGDPA
(continued)
• Employment consequences: an intentional
violation of the MGDPA may subject the
employee to suspension without pay or
dismissal
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Litigation Holds
THE BASICS
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What Is a Litigation Hold?
A process by which relevant documents, data
and other information is identified and
preserved for potential use in a lawsuit.
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What Is a Litigation Hold?
• Common law and rules of civil procedure
impose a duty to preserve evidence
• Litigation holds are implemented to
prevent the automatic or unintentional
destruction of potentially relevant
documents or data
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What Is Included in Litigation Hold?
Physical Evidence
• Hard copy documents
(letters, calendars,
policy manuals, printed
e-mails, logs, notes,
files, books, etc.)
– Printed or hand-written
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• Photographs
• Audio or video (tapes,
DVD, CD)
• Other tangible items or
things
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What Is Included In Litigation Hold?
Electronically Stored Information (ESI)
•
•
•
•
•
•
Electronic documents and files
Email, voicemail and text messages
Social media posts
Calendar information, contact lists
Security card logs
Databases
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What Is Included in Litigation Hold?
Electronically Stored Information (ESI)
• Digital, audio or video files
• Text messages
• Website information
• Internet usage data
• Telephone logs
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Special Consideration for ESI
• Critical to suspend automatic destruction
• Metadata
– Data about data
– Information on the history, tracking or
management of an electronic document
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Metadata
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What About Records Retention?
Records retention schedule: Provides length
of time records relating to government entity
official business must be kept before they
may be destroyed or otherwise disposed
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Important!
Litigation Hold v. Records Retention
• Records retention schedule only applies to
official records
• Litigation holds apply to all documents and
data in the possession, custody or control
of the government entity
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What About Data on Personally
Owned Devices?
A litigation hold may apply to data that is on an
employee’s personally owned device or account
• Including personal computer, laptop, tablet cell
phone or smart phone
• Home or personal e-mail account
• Private social media accounts
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What Does This Mean?
Individuals may be required to preserve
certain data and/or to turn their devices over
if there is a request to preserve or to provide
data that may exist.
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How Much Do We
Have to Save?
• Depends on the circumstances and the
subject matter of the litigation hold
• Applies to relevant data and documents in
existence at time hold attaches and
created after
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To Whom Does It Apply?
Anyone who might have relevant data to
support a claim or its defenses
•
•
•
•
Employees
Elected officials
Former employees or elected officials
Independent contractors, consultants and temporary
or contracted employees
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When Does the Duty to Preserve
Begin?
• When entity reasonably anticipates litigation-actual
or potential legal filing
– Letter from an attorney indicating action imminent
– Preservation letter expressly requesting certain
documents be preserved
– Notice of claim
• Internal events and triggers
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Examples of Internal Events and
Triggers
• Complaints or grievances alleging
harassment or discrimination
• Termination of an employee for cause
• Contract dispute
• Incident involving death or serious injury
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What Steps Should We Take?
• Consult with legal counsel
• Identify the subject matter and scope of
the litigation hold
• Determine who will preserve information
included in hold, particularly ESI
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Consult with IT
• Identify relevant data systems
• Identify and preserve any data that may be
at risk of deletion
• Suspend any automatic ESI destruction
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Consult with IT
• Identify IT’s ability to search and retrieve
ESI
• Review existence and status of any
archived data
• Identify any planned upgrades to computer
systems
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Send Litigation Hold Letter
• Consider sending letter to all pertinent
individuals
– Generally drafted by legal counsel
– Issued from legal counsel or someone with broad
authority
– Be simple, but thorough
– Express urgency and importance of the matter
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Further Steps to Take
• Keep a record of all litigation hold activities
– Document all aspects of the preservation
process; send reminders of hold
– File litigation hold letter acknowledgements
– Remember departing employees
– Review scope of hold periodically
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How Long Must We Maintain the
Hold?
• If ongoing litigation, until litigation has
completed
• If no litigation, may be until the statute of
limitations on possible claims expire
• Consult with legal counsel before removing
or modifying a litigation hold
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Plan Ahead: Create a Litigation Hold
Plan or Process
• Identify who should be notified of a triggering
event
• Identify IT contact person
– If outsourcing IT function, incorporate litigation
holds into contracts
• Identify where physical documents are stored
and methods to preserve them
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Plan Ahead: Create a Litigation Hold
Plan or Process
• Identify where ESI is stored in active systems, backups
and archival systems
• Develop procedures for suspending automatic
destruction and preserving data under a litigation hold
• Consider data preservation for departing employees
– If data not under a litigation hold, require that all workrelated data be returned and wiped off of employee’s
personal devices
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Plan Ahead: Create a Litigation Hold
Plan or Process
• Training for IT contacts and key employees on
litigation holds and process
• Consult with legal counsel regarding plan or
process
Note: If not under a litigation hold, follow the
records retention schedule
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QUESTIONS?
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Sample Litigation Hold Letter
Date: September 2014
Note: This sample litigation hold letter has been developed by Minnesota Counties Intergovernmental Trust
(MCIT). MCIT provides this sample to its members as an example of a litigation hold letter. This is only a
recommendation and does not constitute legal advice. MCIT recommends that members consult legal
counsel prior to taking any action.
For more information about litigation holds, see the MCIT Resource on that issue.
LITIGATION HOLD LETTER
DO NOT FORWARD OR SHARE—PRIVILEGED AND CONFIDENTIAL 1
SUBJECT TO ATTORNEY-CLIENT PRIVILEGE
[DATE]
Dear _______________________:
[GOVERNMENT ENTITY] has become aware of potential litigation in connection with concerning [SUBJECT
MATTER AND/OR INDIVIDUAL]. As such, [GOVERNMENT ENTITY] has a legal obligation to preserve all
materials that may be relevant to [SUBJECT MATTER AND/OR INDIVIDUAL] in any way. This letter is to
inform you of your obligations under this litigation hold.
Under a litigation hold, no one is permitted to destroy or delete relevant evidence that could be helpful to an
adversary or support our case and/or defenses. Your failure to preserve relevant documents and data could result
in severe sanctions against [GOVERNMENT ENTITY], a loss of possible defenses, and/or could result in
disciplinary action taken against you. Thus, it is of critical importance that you comply with the instructions
below. Please note that you may be called to give testimony about your document and data preservation efforts.
The obligations described in this letter are in addition to obligations you may have to preserve documents in
connection with other investigations or litigation. Until you are informed otherwise, these obligations replace the
entity’s record retention schedule.
The directives in this letter are very important. Please read them carefully.
All documents and data relating to or concerning [SUBJECT MATTER AND/OR INDIVIDUAL] must be
maintained and preserved. This means that any documents and data in your possession or control regarding
[SUBJECT MATTER AND/OR INDIVIDUAL] must not be destroyed or deleted until you are notified in writing
that it is permissible to do so.
The highlighted portions of the sample letter should only be included when the entity’s attorney is signing the letter and the letter is
covered by attorney-client privilege and attorney work product doctrine.
1
Minnesota Counties Intergovernmental Trust Resources—
The information contained in this document is intended for general information purposes
only and does not constitute legal or coverage advice on any specific matter.
Page 1 of 4
“Documents and data” as used here includes hard and electronic copies of documents, including letters,
correspondence, memoranda, reports, tabulations, calculations, invoices, vouchers, ledgers, journals, external and
internal literature, books, notes, schedules, worksheets, plans, minutes, bulletins, brochures, catalogs, notices,
press releases, transcripts, calendars, appointment books, diaries, charts, and drafts of all such documents that
mention or relate to [SUBJECT MATTER AND/OR INDIVIDUAL]. This includes handwritten notes, drafts,
tabulations, calculations, summaries, and work papers; it is not limited only to “formal” or “final” documents.
“Documents and data” includes photographs and audio or video tapes or recordings.
“Documents and data” also includes electronically stored information, such as e-mail, voicemail, word processing
files, spreadsheets, databases, calendars, digital audio or video recordings, instant messages, text messages, social
media posts, telephone logs, internet files, and any other electronic information created, maintained or received by
you.
This list is not exhaustive; all documents and data relating in any way to [SUBJECT MATTER AND/OR
INDIVIDUAL] must be preserved.
Sources of the documents and data may include all hard copy files, computer hard drives, computer servers,
voicemail systems, removable media (CDs, DVDs, flash drives, backup tapes), laptop or tablet computers,
telephones, PDA’s, smartphones, Blackberry devices, iPhones, cell phones, cloud storage and any other locations
where hard copy or electronic data is stored.
If you use a home computer, personal laptop or tablet, or personal cell phone or smart phone to perform work on
behalf of the [GOVERNMENT ENTITY], you must preserve any relevant information from that computer or
device as well. If you use a personal email account or cell phone to send emails or texts related to work, you must
preserve any relevant emails and texts. If you store hard copy documents in locations other than the
[GOVERNMENT ENTITY] office, those documents also must be preserved.
This request applies to documents and data now in your possession, as well as anything you create or receive
subsequent to this letter.
If you have a hard copy of a document in your possession, you may not delete the electronic version of the
document, or vice versa. All documents in all mediums should be preserved, regardless of duplication.
Your only obligation at this time is to identify and preserve documents relevant to [SUBJECT MATTER].
Immediately suspend deletion, overwriting or any other possible destruction of relevant documents and
data.
Please do not sort, categorize, index or summarize any documents—including electronic documents—that are
responsive to this memo, but rather identify them and preserve them intact in the way that they were collected or
created and filed in the ordinary course of business. (For example, if relevant data is in a folder you created in
your e-mail, leave it intact and do not try to copy it to a CD or external drive). Also, please do not mark up any
documents or create any new documents, including e-mail messages, in response to this memo.
If you are not sure whether particular documents or records should be retained, please err on the side of caution
and do not destroy, discard, or delete those documents without prior approval.
If you have any questions about this litigation hold, including questions about whether to retain specific
documents or data or how to preserve specific documents, please contact ____________________.
Minnesota Counties Intergovernmental Trust Resources—
The information contained in this document is intended for general information purposes
only and does not constitute legal or coverage advice on any specific matter.
Page 2 of 4
Do not discuss the litigation hold, potential lawsuit or potential claims or issues with anyone outside
[GOVERNMENT ENTITY] unless specifically directed otherwise. This letter is confidential and its contents may
not be shared or discussed. Do not forward or distribute this memorandum without permission of the sender.
You must preserve documents and data covered by this litigation hold and otherwise comply with the
directives in this letter until you receive written notice that the matter is resolved.
Please sign and return the attached acknowledgement to confirm that you understand and will comply with
requirements set forth in this letter.
We will continue to do our best to minimize inconvenience to you, but it is very important that you comply with
this litigation hold. We appreciate your ongoing cooperation and assistance with this process.
Best wishes,
[SIGNATURE]
[NAME OF SENDER]
Minnesota Counties Intergovernmental Trust Resources—
The information contained in this document is intended for general information purposes
only and does not constitute legal or coverage advice on any specific matter.
Page 3 of 4
Please return only this page with your signature to ___________________. Please keep the Litigation Hold
Letter for your records.
ACKNOWLEDGEMENT PAGE
I acknowledge that I have read, understand and agree to comply with the Litigation Hold Letter dated
______________________ regarding documents and data related to [SUBJECT MATTER AND/OR
INDIVIDUAL]. I understand that if I have any questions about this letter, I should contact
__________________________ at _____________________.
Signature: _________________________________________________
Printed: ___________________________________________________
Date: ___________________________________
Minnesota Counties Intergovernmental Trust Resources—
The information contained in this document is intended for general information purposes
only and does not constitute legal or coverage advice on any specific matter.
Page 4 of 4
Whys and Hows of Litigation Holds
Date: September 2014
What Is a Litigation Hold?
A litigation hold is a formal means or a process by which routine document retention and destruction is
suspended and relevant documents, data and other evidence are identified and preserved for potential use in
a lawsuit.
Although the term “litigation hold” was first coined in the seminal case of Zubulake v. UBS Warburg, LLC, 220
F.R.D. 212 (S.D.N.Y. 2003), the concept behind a litigation hold is not new. Parties to a lawsuit have long been
under some form of a duty to preserve evidence in litigation. With paper and tangible items, this task was
much easier. In the world of electronic data, however, this task has become increasingly complex.
This complexity stems from the fact that it is much easier for electronic data to be accidently and
unintentionally overlooked and destroyed. Additionally, unlike paper documents, which were often limited in
number and stored in a designated place such as a file cabinet, electronically stored information (ESI) is found
in numerous places and in a variety of formats.
Litigation holds are primarily implemented to prevent the automatic or unintentional destruction of possibly
relevant documents or data that could be used as evidence in a lawsuit. This is a particular issue for electronic
data, which may be set to automatically destruct. For example, to save server memory, e-mail and voicemail
systems are often set up to delete messages after a set number of days. Video or audio recording systems,
such as security cameras, often have similar set ups to save space.
There can be severe consequences for a party or individual who fails to implement or ineffectively implements
a litigation hold and relevant evidence is lost or “spoiled.” “Spoliation” is “the destruction or significant
alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or
reasonably foreseeable litigation.” 1 Depending on the extent of the spoliation and prejudice to the opposing
party, courts have ordered severe sanctions such as default judgment against the spoiling party or adverse
jury instructions, such as requiring or permitting the jury to assume that the missing evidence was detrimental
to the spoiling party. 2
Failure to implement a timely or effective litigation hold can also have monetary consequences. Courts have
ordered parties to undertake the expensive task of restoring systems from backup tapes or media in order to
Zubulake, 220 F.R.D. at 215. See also, Miller v. Lankow, 801 N.W.2d 120, 127-28 (Minn. 2011).
Sentis Group, Inc. v. Shell Oil Co., 12-3623, 2014 WL 3953987 (8th Cir. Aug. 14, 2014); Stevenson v. Union Pac. R. Co., 354 F.3d 739 (8th
Cir. 2004); E*Trade Sec. LLC v. Deutsche Bank AG, 230 F.R.D. 582 (D. Minn. 2005).
1
2
Minnesota Counties Intergovernmental Trust Resources—
This document is intended for general purposes only and should not be construed as legal advice or mandates by MCIT. The minimum limits outlined above may not be appropriate for every contract. Specific situations may dictate a need for higher limits.
Page 1 of 11
recover lost evidence. 3 Courts have also ordered spoiling parties to pay attorney fees and expenses of the
opposing party who is seeking evidence that should have been preserved. 4
Aside from court-imposed sanctions, a party that fails to initiate an effective litigation hold can be harming its
own defense or prosecution of a civil lawsuit. Critical evidence to prove the party’s own case may be lost
through routine destruction processes.
On an individual level, the known failure to implement a necessary litigation hold or the failure to comply with
a hold after being instructed to do so could be grounds for employment discipline.
What Information Is Included Under a Litigation Holds?
The process by which parties gather information in a civil lawsuit is called discovery. One of the tools in
discovery is a “Request for Documents, Electronically Stored Information and Things.”
Under the rules of civil procedure, parties can ask to inspect, copy, test, or sample any nonprivileged
documents, electronically stored information or tangible items in the responding party's possession, custody,
or control that may be relevant to the claims. 5 “Documents” are defined broadly in the rules as “including
writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data
compilations” and can be “stored in any medium from which information can be obtained either directly or, if
necessary, after translation by the responding party into a reasonably usable form.” 6
Because the scope of what can be requested in discovery is broad, the types of documents, data and tangible
things that must be preserved under a litigation hold is also broad.
Parties under a litigation hold are required to preserve data and information that is:
• known or reasonably should be known to be relevant to the action.
• reasonably calculated to lead to the discovery of admissible evidence.
• reasonably likely to be requested during the discovery process.
• the subject of a pending discovery request. 7
In short, the scope of the litigation hold will depend on the circumstances and the subject matter of the
events underlying the reason for the hold. Overpreservation is better than under preservation at the initial
stages. An entity can decide later that documents, ESI or tangible items are no longer needed. On the other
hand, it is extremely difficult to “undelete” or restore something destroyed.
Documents, ESI and Tangible Items
Litigation holds will cover physical evidence such as:
• hard copies of documents, whether printed or handwritten, including but not limited to
 letters, memoranda or correspondence.
 forms and reports.
 external and internal literature and books.
 notes.
Escamilla v. SMS Holdings Corp., CIV. 09-2120 ADM/JSM, 2011 WL 5025254 (D. Minn. Oct. 21, 2011).
E*Trade Sec. LLC v. Deutsche Bank AG, 230 F.R.D. 582 (D. Minn. 2005).
5
See Rule 34 of the Federal Rules of Civil Procedure and Rule 34.01 of the Minnesota Rules of Civil Procedure.
6
Fed. R. Civ. P. 34. See also, Minn. R. Civ. P. 34.01.
7
Zubulake, 220 F.R.D at 217.
3
4
Minnesota Counties Intergovernmental Trust Resources—
This document is intended for general purposes only and should not be construed as legal advice or mandates by MCIT. The minimum limits outlined above may not be appropriate for every contract. Specific situations may dictate a need for higher limits.
Page 2 of 11
•
•
•
 schedules, worksheets, or plans.
 minutes transcripts, journals.
 bulletins, brochures, newsletters, notices, or press releases.
 calendars, appointment books, or diaries.
photographs.
audio or video (tapes, DVD or CD).
other tangible items or things.
Electronically stored information (ESI) covered by a litigation hold may include, but is not limited to:
• electronic documents and files.
• e-mail messages and attachments.
• voice mail messages.
• digital audio or video files.
• text messages or instant messages.
• Internet and intranet website information.
• social media posts and messaging.
• calendar information.
• contact lists.
• telephone logs.
• security card logs.
• databases.
• Internet files and usage data.
Litigation holds are not limited only to formal or final documents. They apply to all drafts of documents and
any handwritten notes or work papers, whether electronically stored or in hard copy.
Sources of the documents and ESI may include, but are not limited to:
• all hard copy files.
• computer hard drives.
• computer servers.
• voicemail systems.
• removable media (CDs, DVDs, flash drives, backup tapes).
• laptop or tablet computers.
• telephones.
• cell phones and smartphones.
• cloud storage.
• any other locations where hard copy or electronic data is stored.
Litigation holds apply to relevant documents and ESI in a party’s possession at the time the litigation hold is
initiated, as well as anything relevant to the subject matter created or received after the litigation hold is
initiated.
Litigation holds also apply to documents and ESI stored in locations other than a party’s primary offices,
including at employees’ homes.
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Page 3 of 11
Employee- or Individually Owned Devices
Litigation holds can also apply to relevant documents or data that are stored on an individual’s personally
owned device or account, including
• home computer, personal laptop or tablet.
• personal cell phone or smart phone.
• home or personal e-mail account.
• private social media accounts.
The underlying question asked by the courts when determining whether a source of data should have been
preserved and/or produced for discovery is whether the party has possession, custody or control of the data
or has the legal right to obtain the data on demand. 8 Courts are likely to find that an employer has control
over its employees when it comes to obtaining work-related documents or information during litigation.
Responsibility for a litigation hold addressed to an employer will likely be imputed to the data or information
held by its employees.
Practically speaking, this means that individuals may be required to preserve certain documents or data
and/or to turn their personally owned devices over to the government entity, legal counsel or the court if
there is a litigation hold or a request to provide data that may exist. The fact that the same documents or data
may also be found in another location, such as the entity’s computer or e-mail server, does not relieve the
individual of his or her obligation to preserve under the litigation hold.
A litigation hold or discovery request can also be addressed directly to an employee. This could occur if the
employee is a named party in the lawsuit or is required to produce documents, ESI or other objects in
conjunction with a deposition request. 9
ESI and Metadata
It is usually not permissible under a litigation hold to destroy an electronic version of a document if a hard
copy exists or vice versa. All documents in all media should be preserved, regardless of duplication. The reason
for this general prohibition is the existence of metadata in electronic documents.
Unlike hard copy documents, which contain only the words or information placed by the author in the
document, electronic documents contain that information plus metadata. Metadata typically contains
information about the history, tracking or management of an electronic document. 10 For example, in a word
processing document, the metadata may contain information about the author of the document; the date
and time it was created; the amount of time it took to draft the document; and when and by whom the
document was last accessed, modified, printed or saved. It may also provide information on previous drafts or
edits to the document.
Fed. R. Civ. P. 34(a); Minn. R. Civ. P. 34.01. See Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 636 (D. Minn. 2000).
A deposition is another type of discovery request involving a pre-trial, out-of-court oral examination under oath before a court
reporter.
10
The Sedona Conference Commentary on Ethics and Metadata, 14 Sedona Conf. J. 169 (Fall 2013)(also at
https://thesedonaconference.org/publications)
8
9
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Page 4 of 11
Litigation Holds and Records Retention
The Minnesota Official Records Act provides that government entities “shall make and preserve all records
necessary to a full and accurate knowledge of their official activities.” 11 The Records Management Act governs
the retention and disposal of official government records. 12
All government entities covered by these Acts are required to have records retention schedules that outline
how long official records will be kept and when the records should be destroyed or otherwise transferred or
returned to another government entity. If an official government record is not listed on a records retention
schedule, it must be kept until permission to destroy has been given by State Historical Society.
Litigation holds supersede any requirement, permission or authorization to destroy documents or data
under the records retention schedule or from the State Historical Society or another entity.
It is important to keep in mind that the documents and ESI covered by litigation holds are broader than the
official records covered under the records retention schedule. For example, official records will include the
final approved minutes of a board meeting, but may not include the handwritten notes on the side of an
agenda jotted by a department head sitting in on the board meeting. If the subject matter of a litigation hold
were a topic discussed at that board meeting, both the final approved minutes and the handwritten notes on
the agenda would likely need to be preserved.
Electronic records on the whole provide some unique problems for record retention. The Minnesota Historical
Society has published Electronic Records Management Guidelines (MNHS.org/preserve/records/electronic
records/erguidelines.html), which provide information on a variety of topics, including e-mail and Web
content management.
To Whom Does a Litigation Hold Apply?
Litigation holds apply to anyone who might have possession or access to documents, ESI or tangible items
that will support a claim or its defenses. For government entities, this will likely be all employees and elected
officials. It may also apply to former employees and elected officials, depending on the subject matter and
timing of the litigation hold.
Litigation holds may also apply to individuals and entities outside of the government entity. As noted earlier,
the rules of civil procedure require that a requesting party be permitted to inspect, copy, test, or sample the
items in the responding party's “possession, custody, or control.” 13
Items are deemed to be within the possession, custody or control of a party “if the party has actual possession,
custody or control, or has the legal right to obtain the documents on demand.” 14 “’[C]ontrol’ does not require
that the party have legal ownership or actual physical possession of the documents [items] at issue; rather
documents are considered to be under a party's control when that party has the right, authority, or practical
ability to obtain the documents from a non-party to the action.” 15
Minn. Stat. § 15.17
Minn. Stat. § 138.17
13
Fed. R. Civ. P. 34(a); Minn. R. Civ. P. 34.01.
14
Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 636 (D.Minn.2000). See also, In re Hallmark Capital Corp., 534 F. Supp. 2d 981, 982
(D. Minn. 2008).
15
Id. (internal citations omitted).
11
12
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Page 5 of 11
Therefore, if a government entity has a contract or other working relationship with an outside vendor,
independent contractor, consultant or other and has a right or practical ability to obtain documents, data or
items from those individuals or organization, the individual or organization might be subject to a litigation
hold.
Deciding whether a party has control is a fact specific inquiry. During the discovery process, the government
entity may have a good argument as to why certain documents, data or things from an outside individual or
entity do not have to be produced. However, as a best practice, members are encouraged to notify outside
entities and individuals who are arguably subject to their authority and may have relevant documents, ESI or
things of the litigation hold to avoid spoliation of evidence claim.
When Should a Litigation Hold Be Implemented?
There is a common misconception that parties do not have to worry about saving relevant documents, data
and other evidence until after a lawsuit has been filed and served. In actuality, the duty to preserve starts
much earlier than that.
The duty to preserve arises during the period before the litigation when a party reasonably anticipates
litigation and should know that the evidence may be relevant to the anticipated lawsuit. 16
There are several factors that can go into determining when litigation may be reasonably anticipated,
including:
• the nature and specificity of the complaint or threat.
• who is the party making the claim.
• the relationship between the parties.
• whether the threat is direct, implied or inferred.
• whether the party making claim is known as aggressive or litigious.
• whether the party who could assert a claim is aware of the claim.
• the strength, scope or value of the known or reasonably anticipated claim.
• whether there have been similar claims or reports of claims against the party or someone similarly
situated.
• any press or industry coverage of similar claims. 17
Determining whether litigation is or should be reasonable anticipated is based on a good faith and reasonable
evaluation of relevant facts and circumstances. Members should work with their legal counsel to determine
whether litigation is reasonably anticipated, such that a litigation hold should be implemented.
As a rule of thumb, however, members should consider implementing a litigation hold when there is:
• an actual or potential legal filing, such as a summons and complaint or notice of an administrative
hearing.
• a notice of a credible threat of a legal filing or litigation event, such as a notice of claim or a letter from an
attorney indicating action is imminent and/or requesting document preservation.
• an internal trigger or event that often leads to litigation.
See Silvestri v. General Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001). See also, Best Buy Stores, L.P. v. Developers Diversified Realty
Corp., 247 F.R.D. 567, 570 (D. Minn. 2007); Miller v. Lankow, 801 N.W.2d 120, 127-28 (Minn. 2011).
17
The Sedona Conference, Commentary on Legal Holds: The Trigger and The Process, 11 Sedona Conf. J. 265 (Fall 2010)(also at
https://thesedonaconference.org/publications)
16
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Determining whether a specific internal trigger or event is of sufficient significance so as to require a litigation
hold may be a difficult decision. Often it requires a fact-intensive, case-by-case evaluation. Examples of
internal triggering events are:
• Complaints or grievances alleging harassment or discrimination
• Termination of an employee for cause
• Contract dispute
• Incident involving death or serious injury
For example, for a potential employment related case brought by a terminated employee, it might be
important to preserve the employee’s computer hard drive, e-mail account and server files from the date of
termination. In the event of a serious injury or death in a law enforcement or corrections situation, it is
important to immediately preserve any video or audio recordings of the event before they are destroyed.
Generally, if a situation is of such a nature that the decision is made to contact MCIT or other insurance carrier
regarding coverage, a litigation hold is likely appropriate.
Members should keep in mind that litigation holds also apply when the member is seriously contemplating
initiating litigation or takes specific actions to commence litigation.
Implementing a Litigation Hold
Consult with Legal Counsel
Because time may of the essence in a litigation hold situation, legal counsel should be contacted as soon as
possible after a triggering event occurs or is suspected. Legal counsel can assist in evaluating whether a
triggering event has occurred and determining whether a litigation hold may be legally required. The
assistance of legal counsel is also a key component to the process if it is determined that a litigation hold is
needed.
In the event that legal counsel is unavailable on short notice, staff may need to move ahead with identification
and preservation efforts, particularly when it comes to suspending automatic or routine records destruction.
Identify the Subject Matter and Scope of the Litigation Hold
The subject matter and the scope of the litigation hold will depend on the circumstances underlying the
triggering event. In the initial stages, it is best to define the scope broadly to make sure that all pertinent items
are preserved and retained. The scope can always be modified and narrowed at a later date when more details
are known about the possible claims.
Determine Individual(s) Responsible for Preserving Information, Particularly
ESI During the Litigation Hold
A decision should be made about who within the government entity will oversee the litigation hold process
for this particular triggering event. Although there may be multiple individuals covered by the litigation hold,
an entity should consider assigning one or more individuals to coordinate the litigation hold efforts. A
multidisciplinary effort, including individuals from legal, information technology (IT), records management,
administration and/or the affected department, may be the most effective as it provides expertise from a
variety of areas that may be affected.
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Identify Key Players and Data Custodians
A crucial step in the litigation hold process is communicating about the litigation hold to the appropriate
individuals. Key players are those individuals who are most likely to possess relevant documents, ESI or items
and be witnesses in any litigation. Data custodians are individuals who may have access to relevant
documents or data, but are not necessarily key players in the litigation. Key players will often have more
information about the triggering event and the subject matter of the litigation hold, or have a need to know
more information to implement the litigation hold effectively.
The key players and data custodians should be asked about what relevant evidence may exist and where it
may be stored. They may also know of others who potentially have items that should be preserved. Often inperson meetings work best to gather this information and to explain the obligations of a litigation hold.
Consideration should be given to the Minnesota Government Data Practices Act (MGDPA) when discussing
reasons for issuing litigation hold with key players and data custodians, particularly if private or confidential
data is involved. Under the MGDPA, government employees and officials are permitted to have access to
private or confidential data when their job duties reasonably require access. Some employees and officials
may only need to know about the litigation hold in broad terms, and not the specifics of the allegations.
Identify How, Where and in What Form Potential Evidence Is Stored
Knowing how, where and in what form potential evidence is stored will assist in determining how it will be
preserved and whether there is any risk for accidental destruction. It may also assist legal counsel in preparing
for discovery if a lawsuit is filed. In some instances, such as when a lawsuit has already been filed, collection of
documents and data under legal counsel’s direction may also be appropriate.
Identify and Suspend Any Retention Schedules or Automated Processes
That Might Lead to Destruction of Evidence
Individuals responsible for records retention or records destruction should be notified as soon as possible of a
litigation hold that may affect records in their custody and control. Because ESI can be so easily destroyed, it is
critical that routine or automatic destruction is suspended as soon as it becomes clear that a litigation hold is
needed.
Involve Information Technology (IT) Personnel at Early Stages
The key to a smooth litigation hold process is being able to identify, manage and preserve ESI when a
triggering event occurs. To that end, it is important to involve IT personnel as early as possible. IT personnel
should be able to assist in:
• identifying relevant data systems and the ability to search and retrieve ESI from those systems. 18
• identifying and preserving any ESI that may be at risk of deletion.
• suspend any automatic ESI destruction.
• identifying any planned upgrades to computer systems that may impact a litigation hold.
• identifying the existence and status of any archived data and the ability to preserve this data if necessary.
Because metadata can easily be changed or destroyed when data files are open, it is best not to open any data files unnecessarily
when searching for relevant ESI. IT personnel may be able to search files without opening.
18
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Page 8 of 11
Consider Sending a “Litigation Hold” Letter to All Pertinent Individuals
A best practice is to provide a written litigation hold notice and requiring acknowledgement to all key players
and potential data custodians. As discussed previously, this may include individuals or entities outside of the
government entity, depending on the location of the potential evidence.
A written litigation hold letter will confirm any verbal instructions that have been given, provide a reference to
key players and data custodians of their obligations, and serve as evidence supporting that the litigation hold
was sufficiently communicated and understood.
Members are encouraged to work with legal counsel when issuing a litigation hold letter. Litigation hold
letters are generally drafted and issued by legal counsel, or alternatively issued from someone with broad
authority in the organization. Letters that are issued from legal counsel may have the added benefit of being
protected by the attorney-client privilege and/or attorney work product doctrine.
When drafting letters, it is important to keep the letter simple, but thorough. The letter should express the
urgency and importance of the matter. An effective litigation hold letter will:
• set forth a brief description of the case or situation, keeping the Minnesota Government Data Practices Act
in mind.
• identify preservation obligations.
• define what should be preserved.
• define where it may be located.
• reference personal computers, devices and accounts.
• instruct how to identify and preserve documents and data.
• identify the risks of noncompliance.
• direct that records destruction and automatic deletion be suspended.
• direct that future documents on the subject matter be maintained.
• notify that the litigation hold supersedes other records retention requirements.
• sets forth the timeframe to preserve.
• provides contact information for questions.
• requires written acknowledgement of the litigation hold.
A sample litigation hold letter is available for download from MCIT’s online Resource Library.
All litigation hold acknowledgements should be kept in a litigation hold file for future use. As a best practice,
there should be follow up with any individuals who do not return the acknowledgement.
Keep a Record of All Litigation Hold Activities
As a best practice, all aspects of the preservation process should be documented for future use, including:
• why the litigation hold was needed.
• who the key players and data custodians are, and why.
• who received a copy of the litigation hold letter.
• the steps taken to preserve documents, ESI and things.
• the basis for selecting certain documents and ESI for preservation.
Send Periodic Reminders About the Litigation Hold
Periodic reminders about the litigation hold should be sent to all key players and data custodians with an
instruction to inform the sender about any changes or development in data preservation activities.
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Consider the Litigation Hold for Departing Employees
Develop procedures for preserving the documents or data of key players or data custodians who are leaving
employment with the government entity. For example, computer hard drives may need to be preserved, as
may e-mail folders and other documents or data files. Some organizations have color-coded the computer
hardware or flagged server and e-mail files that may be under a litigation hold so that they are not
automatically reformatted or disposed of when an employee leaves.
If the departing employee has ESI on a personally owned computer or device, arrangements may need to be
made to preserve that ESI, if it has not already been done.
Periodically Review the Scope of the Hold
The scope of the litigation hold may need to be reviewed every so often to ensure that it is still covering all
relevant documents, ESI and things. In some instances, it may be possible to scale the litigation hold back as
potential legal claims and defenses become clearer.
Keep Legal Counsel Up-to-Date About Any Developments
Notify legal counsel if there are any issues with data preservation or compliance with the litigation hold.
Release the Litigation Hold When Finished.
As a final matter, individuals (and outside entities) should be informed when a litigation hold is no longer
needed, and they can go back to the normal retention and destruction schedule. As a best practice, this
release should be provided in writing and contain a reminder to ensure that the documents or ESI is not
subject to another litigation hold in another matter before individuals destroy documents or ESI per the
records retention schedule.
The length of time that a litigation hold must be in place will depend on the circumstances prompting the
hold. If there is ongoing litigation, the hold should be kept in place until the litigation has been completed. If
the hold was put in place in advance of litigation, it may need to remain in place until the statute of limitations
on possible claims expire. This could be anywhere from one to six years or more. Consult with legal counsel
before removing or modifying a litigation hold.
Plan Ahead
The best practice for managing litigation holds is to plan ahead. Government entities should not wait for a
litigation hold situation to arise before considering how to best identify and preserve documents and ESI. By
adopting and consistently following a policy or plan, an entity is demonstrating reasonableness and good
faith in the litigation hold process.
A litigation hold policy, plan or process may:
• identify who should be notified of a triggering event and the person(s) who may need to be involved in a
litigation hold.
• identify an IT contact person or position and require involvement of that individual at early stages. If a
government entity is outsourcing the IT function, consider incorporating assistance with litigation holds
into the contract. Entities should also consider any additional budgeting that may be needed for
outsourced IT in the event of a litigation hold.
• identify where physical documents are stored and methods for preserving that data.
• identify where ESI is stored in active systems, backups and archival systems, including:
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•
•
•
•
 where the systems are physically located.
 who the data custodians for the ESI are.
 how the ESI is accessed and the format in which ESI is kept.
 how easy or difficult it is to access the ESI.
 possible methods for preserving ESI.
 any automated destruction processes attached to the ESI.
develop procedures for suspending automatic destruction and preserving data that may be under a
litigation hold, particularly for departing employees.
consider document and data preservation for departing employees. If documents or data is not under a
litigation hold, require that all work-related data be returned and wiped off of employees’ personal
devices.
provide any necessary training for individuals managing litigation holds, IT contacts and key employees
on litigation holds and process.
consult with legal counsel regarding all aspects of any policy, plan or process.
Government entities should continue to follow their records retention schedule and planned destruction for
documents and data that are not under a litigation hold. This is important as it limits the amount of data and
documents to be identified and preserved. Entities may want to audit records retention and destruction to
ensure compliance with the schedule.
Members are encouraged to contact their legal counsel for more information regarding litigation holds or a
specific litigation hold currently in place.
Minnesota Counties Intergovernmental Trust Resources—
This document is intended for general purposes only and should not be construed as legal advice or mandates by MCIT. The minimum limits outlined above may not be appropriate for every contract. Specific situations may dictate a need for higher limits.
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