Overview
 Overview of Agency and DOJ Roles
 Litigation Holds
 Data Collection and 26(f) Involvement
 Budget Considerations
 Practical Pointers
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Context
 Inherent Tension in Roles of Agency and DOJ Counsel
 Agency counsel controls the records, may have been on case
for some time, and is responsible to the agency -- neither you
nor judge write performance appraisals “This case is taking us
away from doing work that is a priority for the Secretary.”
 DOJ counsel controls the litigation and communication with
parties, and must appear before the judge
 Cases
 United Medical Supply v. U.S., 77 Fed. Cl. 257 (2007)
 U.S.A. Ex Rel. Robert C. Baker v. Community Health Systems,
Inc., 1:05-cv-00279-WJ-ACT (D.N.Mex.) October 15, 2012
(opinion and order of district judge); August 31, 2012 (report
and recommendation of magistrate judge)
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Context
 Budget

Agencies lack funding and it will only get worse, excessive costs
come from program dollars or furlough dollars
 Management
 OGC’s often depend on their agencies (CIOs and senior
officials) to get things done – that requires involvement
at senior management level of OGC for a big case
 Time and planning

Agencies have competing priorities; agency counsel have a
sense of the time and planning involved for a given effort –
agencies cannot turn on a dime
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Litigation Holds
 GOAL: To develop a litigation hold and document
preservation strategy in cooperation with agency and
DOJ that is proportional, capable of being
documented, and is rationally defensible to the court
 Principles for Meeting Goal:
 Templates must be modified to meet the facts of the
case and the agency
 Be demanding of agency where agency has gaps
 Be flexible, be creative, be communicative
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Litigation Holds
 Common difficulties when maintaining a litigation hold:
 Custodians holding data may move within or leave the
organization
 Contractors who have relevant ESI may also need to be
subject to a hold as appropriate (need to work with
contracting officer and make sure the hold is tailored
specifically for a contractor)
 May need to include information related to e-discovery in all
agency contracts to provide contractors a head’s up of their
obligations
 IT systems may be refreshed or migrated – data must either
be collected or transferred in forensically sound manner
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Litigation Holds
 Common challenges when maintaining a litigation hold:
 Email systems are not designed for litigation holds
 Hold recipients may forget or were not provided best
practices with the hold
 New employees may not be informed of the hold
 OGC usually has a greater familiarity with litigation holds and
e-discovery processes
 Agency counsel needs to work to educate all program
offices throughout the agency on e-discovery processes and
obligations
 DOJ as trial counsel has needs and obligations built upon
information from the agency
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Baker v. Community Health Systems, Inc.
 The trigger
 Trigger did not go off in FCA case upon filing (12/05) but DOJ did not issue litigation
hold until it intervened (2/09); court held obligation arose when DOJ rejected
defendants offer of settlement 6 months earlier (9/08) – DOJ informed defendant of
its obligation 2/06
 Agency counsel challenges
 Agency counsel personally knew that key player retired in interim between trigger
and hold but no personal attempt to preserve ESI and did not realize gone until 2
years later
 Second key player retired after hold in effect but no effort to preserve ESI for 2
months and was lost
 Although agency counsel had continuing involvement with the DOJ in 2008 and
2009, she did not participate in identifying the scope of documents to be preserved
 Agency counsel was unaware of agency document retention policies
 Agency counsel took a month to circulate hold within agency once issued
 Agency efforts “woefully inadequate and beyond negligence.” Court faulted agency
for “lackadaisical” attitude and failure of agency counsel to take steps to monitor
implementation, assuming it would “trickle down” from folks to whom hold was
directed
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Involve the Agency in 26(f)
 Develop a plan before the 26(f) meeting
 Agency counsel and IT much more familiar with
what has been done, what is available, and how
easy to retrieve
 Never make a commitment if you do not know the
agency’s ability to deliver
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Communication
 Communicate, Communicate, Communicate
 Starts with assignment of case, talk to competent agency
counsel before sending out litigation hold
 Find the e-discovery expert, especially if case is large and
complex
 Negotiate search terms, methodologies, technologies, or
technical standards of production with competent agency
counsel input
 “Reasonably anticipate” litigation is at an early point for
agency counsel– challenge to handle crafting search terms if
opposing parties not represented by counsel yet or if it is
unknown whether DOJ will be involved in an agency case at a
later point
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Communication
 Communicate, Communicate, Communicate
 Establish a consistent competent point of contact with the
agency: if one is substance and one is e-discovery always
copy both
 Keep competent agency counsel informed of ALL
developments in case
 Agency counsel may be faced with challenges because they
may not have the same review or processing tools as DOJ
 Agency counsel is required to track and document
litigation hold recipients, document data that is preserved
and produced; this is difficult given the high volume and
agency counsel may need tracking system
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Contact Information
Allison C. Stanton
DOJ-Civil Division
Director of E-Discovery, FOIA, and Records
[email protected]
Sarah D. Himmelhoch
DOJ-ENRD
Senior Litigation Counsel for E-Discovery
[email protected]
Tenille Washburn
HUD
Assistant General Counsel
Field Management and IT Division
[email protected]
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