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U.S. Geological Survey Manual

431.11 – Litigation Holds

 June 3, 2009

OPR:  Geospatial Information Office

 Instructions:  This is a new Survey Manual Chapter

1.  Purpose.  This chapter establishes the policy for litigation holds in the U.S. Geological Survey (USGS).  When litigation ensues or is reasonably foreseeable, Federal law requires parties to preserve potentially relevant information, including electronically stored information (ESI).  Directives to preserve information due to actual or foreseeable litigation are commonly known as litigation holds and will be issued by the Department of the Interior (DOI), Office of the Solicitor (SOL), for implementation by the USGS.

2.  References.

A.  U.S. Code, Title 28 - Federal Rules of Civil Procedures, Rules 26, 34, and 37

B.  SM 431.1 – Records Management Program

C.  SM 431.3 – Electronic Mail

D.  432-1-S1 – USGS General Records Disposition Schedule

E.  432-1-S2 – Water Resources Discipline Scientific Records Disposition Schedule

F.  432-1-S3 – Biological Resources Discipline Mission-Specific Records Disposition Schedule

G.  432-1-S4 – Special Geologic Studies Group Records Disposition Schedule

H.  432-1-S5 – Geology Mission-Specific Records Disposition Schedule

I.  Geospatial Information Office Mission-Specific Records Disposition Schedule

J.  National Mapping Discipline Mission-Specific Records Disposition Schedule

K.  DOI SOL - Information and Guidance for Managing the Discovery of Electronically Stored Information, issued November 27, 2006

3.  Policy.  Upon receipt of litigation hold directives from the SOL, the USGS will diligently work to respond within the specified timeframe and will manage the preservation of any information that may be relevant to the pending or foreseeable litigation, until such time as the litigation hold is released.  The USGS will maintain up-to-date retention policies and procedures and take appropriate steps to prevent destruction, alteration, or mutilation for the potentially relevant information.

 4.  Definitions.

 A.  Electronically Stored Information.  Electronically Stored Information (ESI) is information that may be created, manipulated, communicated, stored, or utilized in electronic form.  ESI includes e-mail, voice mail, instant messages, electronic business documents, e.g., word processing, spreadsheets, and calendars, and computer databases.

B.  Litigation Hold.  A directive to preserve information, regardless of form, that is relevant to the pending or foreseeable litigation.

C.  USGS Document Production Team.  The USGS Document Production Team (DPT), also the Bureau’s electronic discovery team, consists of bureauwide contacts that assist in identifying, preserving, and producing information relevant to pending or foreseeable litigation.  The DPT will support or participate in the implementation of litigation hold directives issued to the USGS by the SOL and will coordinate the collection and organization of the information, as necessary.

5.  Procedures.

 A.  Upon receiving a litigation hold directive from the SOL, the USGS Geospatial Information Office (GIO), in cooperation with the DPT, will distribute the litigation hold to appropriate offices and employees.  The DPT will provide guidance to offices and employees, as necessary, to help them implement the litigation hold.

B.  Upon receipt of a litigation hold, those affected offices and employees must immediately take appropriate measures to secure all paper and ESI subject to the litigation hold and to suspend normal procedures affecting the disposition of potentially relevant ESI or paper records.  Information to be preserved may be located at:

(1)  Off-site facilities, such as Federal Records Centers.

(2)  Subject matter files in employee offices.

(3)  Equipment where ESI may be stored, includes, but is not limited to, network or hard drives of office desktop computers, office and field laptop computers, and Government computers at employee residences (or privately-owned personal computers if government-related information is processed by the computer), portable storage media, e.g., flash drives, compact discs, memory sticks, and zip disks, and any handheld cell phones, Smartphones, or computers (may also be  referred to as personal digital assistants).

C.  ESI must be preserved such that it can be retrieved at a later time as dictated by the litigation and determined by the SOL.  The information must be preserved in its original electronic form unless another form is approved by the SOL, e.g., voice mails that contain potentially relevant information must be transcribed.  The DPT will provide technical assistance, as necessary to provide for the proper preservation of ESI. 

D.  Affected offices and employees are also responsible for taking appropriate steps for continued compliance with the litigation hold until such time as that hold is lifted.  This may involve the need to create separate mailboxes and file folders, and segregating affected records or ESI.  Violating the hold, by failing to take steps to preserve potentially relevant information, may expose an employee to disciplinary actions up to and including dismissal as well as personal liability for civil and/or criminal sanctions by the courts or law enforcement agencies.  If an employee possesses potentially relevant information subject to a litigation hold directive and separates from employment with the USGS during the course of the litigation hold directive, their supervisor or other designated person must take possession of all hard copy information and ESI under the control of the former employee as discussed in the records management clearing procedures that is part of the Employee Clearance Report (9-090). 

E.  The GIO, in cooperation with the DPT, will provide technical and administrative assistance, advice, and guidance to facilitate Bureau compliance with and execution of all litigation hold directives, and to disseminate and execute any additional or amended directives from the SOL concerning the litigation hold.  The additional or amended litigation hold directive will then be distributed in the same manner as the original litigation hold directive.  If additional offices or employees are identified as potentially having information subject to the litigation hold, the GIO, in cooperation with the DPT, will notify them by providing the litigation hold directive.

6.  Release from a Litigation Hold.  A release from a litigation hold directive is issued by the SOL.  When a release from a litigation hold directive is received by the USGS, the GIO, in cooperation with the DPT, will distribute a litigation hold release notification identifying the records and information to be released.  Upon issuance of a litigation hold release, the released records and information will once again be subject to the disposition requirements specified in the applicable records disposition schedules.

7.  Recordkeeping.  In accordance with the USGS General Records Disposition Schedule (GRDS), Item 601-05 Litigation and Appeals Files, USGS offices and employees must keep a file copy of the litigation hold communication and any other instructions received until the subject records are released from the litigation hold.

/s/ Karen D. Baker                                                                                   6/3/09
_________________________________________                          _______________
Karen D. Baker                                                                                                Date
Associate Director for Administrative Policy and Services

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