HomeMy WebLinkAboutResolution 2011-086 approving a litigation/legal holds administrative directive MARANA RESOLUTION NO. 2011-86
RELATING TO ADMINISTRATION; APPROVING A LITIGATION /LEGAL HOLDS
ADMINISTRATIVE DIRECTIVE FOR TOWN OF MARANA EMPLOYEES AND ELECTED
AND APPOINTED OFFICIALS
WHEREAS the Town Council has established broad guidelines and parameters regarding
the administration of the Town through the Marana Town Code and other ordinances and
policies; and
WHEREAS Section 3- 2 -1(G) of the Marana Town Code provides that the Town Manager
shall be the chief administrative officer and head of the administrative branch of the Town and
shall execute general administrative supervision and control of the affairs of the Town; and
WHEREAS on September 15, 2009, the Town Council by Resolution No. 2009 -164
approved and authorized the Town Manager to implement an administrative directive system for
carrying out certain administrative functions and providing consistency in the performance of
administrative tasks, in the use of Town resources and equipment, and in the implementation of
the Town Code and other ordinances and policies; and
WHEREAS the administrative directive system approved by Resolution No. 2009 -164
included the provision that any administrative directive relevant to the Town's elected and
appointed officials would be brought before the Council for its consideration and adoption by
resolution; and
WHEREAS the Town Council finds that approving a Litigation/Legal Holds
Administrative Directive that will apply to Town employees and elected and appointed officials
is in the best interests of the Town.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, ARIZONA, AS FOLLOWS:
SECTION 1. The Town of Marana hereby approves the Litigation/Legal Holds
Administrative Directive for Town of Marana employees and elected and appointed officials,
attached as Exhibit A and incorporated by this reference in this resolution.
SECTION 2. The Town's Manager and staff are hereby directed and authorized to
undertake all other and further tasks required or beneficial to implement the Litigation/Legal
Holds Administrative Directive described in Exhibit A.
Marana Resolution 2011 -86 - - {00027498.DOC /}
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA, ARIZONA, this 6 day of September, 2011.
Mayor Ed Wrkay
ATTEST: OFt /►�
WIN
relyn. son, Town Clerk
sF,
AW
APPROVED AS TO FORM:
/ F nk Cq ,' y, Town Attorn
t✓ i
Marana Resolution 2011 -86 -2- {00027498.DOC (}
�pWN O
I 1
9 7
gRrzot
ADMINISTRATIVE DIRECTIVE
Title: Litigation/Legal Holds
Issuing Department: Legal
Effective Date:
Reviewed: Town Manager's Office, Legal, Town Clerk, Technology Services,
Human Resources
Approved: Resolution No. 2011 -86
Type of Action: New
1.0 PURPOSE
Whenever litigation is reasonably anticipated, threatened or pending against the Town, the
Town has a duty to undertake reasonable and good faith actions to preserve relevant
information and tangible evidence. This duty arises whether the Town is the initiator or the
target of the litigation. The duty to preserve evidence requires the Town to identify, locate
and maintain information and tangible evidence that is relevant to specific and identifiable
litigation
The purpose of this Administrative Directive is to set forth the procedures the Town will use
to ensure that evidence relevant to pending or reasonably anticipated litigation is preserved.
This directive also sets forth the obligation of all employees and officials to comply with
litigation/legal holds.
2.0 ORGANIZATIONS AFFECTED
All Town of Marana departments, employees and appointed and elected officials.
3.0 REFERENCES
3.1 Federal Rules of Civil Procedure
3.2 Arizona Rules of Civil Procedure
3.3 Town of Marana Electronic Mail (E -mail) Retention & Storage Administrative Directive
3.4 Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)
3.5 THE SEDONA CONFERENCE® COMMENTARY ON LEGAL HOLDS: THE TRIGGER & THE
PROCESS, September 2010 Version
{00023739.DOC / 6} ADMINISTRATIVE DIRECTIVE: LrrIGATION /LEGAL HOLDS 8/19/11
-1-
4.0 DEFINITIONS
4.1 Evidence: All records and other materials, in whatever format, that may be related to a
pending claim, complaint or matter including but not limited to all letters, memoranda,
agendas, calendars, faxes, notebooks, reports, emails, handwritten notes, presentation
materials, audio tapes, and draft documents.
4.2 Electronically Stored Information (ESI): Includes but is not limited to e-mail and other
electronic communications, word processing files, spreadsheets, databases, calendar and
scheduling information, internet usage files, internet history files and preferences,
network access information, graphic files (e.g. GIF, JPEG, BMP, etc.), digital recordings,
voice mail messages and backup files containing electronic data.
4.3 Legal or Litigation Hold: A directive from the Legal Department directing that all
relevant evidence in any pending or reasonably anticipated litigation must be preserved
and that any routine document retention or destruction policies be suspended with regard
to that relevant evidence. The legal or litigation hold may or may not be in writing.
5.0 POLICIES AND PROCEDURES
5.1 Relevant evidence must be preserved as soon as the Town reasonably anticipates
litigation. Determining whether a duty to preserve is triggered, i.e., whether litigation can
be reasonably anticipated, is a fact - intensive determination which will be made on a case-
by -case basis by the Legal Department.
5.2 To facilitate the Legal Department's determination, all Town of Marana employees and
appointed and elected officials shall inform the Legal Department of any information that
they possess which leads them to believe that litigation may be reasonably anticipated.
Communication to the Legal Department may be by any effective means, including
telephone or email.
5.3 Employees and appointed and elected officials shall notify the Legal Department when
they become aware of any of the following:
5.3.1 A notice of claim filed against the Town
5.3.2 A lawsuit filed against the Town
5.3.3 An administrative action filed against the Town
5.3.4 An Equal Employment Opportunity Commission or Arizona Civil Rights Division
charge of discrimination filed against the Town
5.3.5 Receipt of a discovery request
5.3.6 Receipt of a subpoena for records or documentation
5.3.7 Any other event which the employee or official reasonably believes will result in
litigation by or against the Town
5.4 If the Legal Department determines that no duty to preserve is triggered by an event, the
attorney making the determination shall prepare a memorandum to the file explaining the
reasons why a litigation hold was not issued.
{00023739.DOC/ 6} ADMINISTRATIVE DIRECTIVE: LITIGATION /LEGAL HOLDS 8/19/11
-2-
5.5 If the Legal Department determines that a duty to preserve is triggered by an event, the
attorney making the determination shall immediately put all key departments, employees
and officials on notice that they are under an obligation to preserve relevant records. The
Legal Department shall issue a written litigation hold memorandum to the key individuals
who might be in possession of relevant evidence. The Town Manager's Office,
Technology Services Director, Permit Center and Records Manager and the Town Clerk
will be copied on all litigation hold memoranda. In exigent circumstances, the Legal
Department may issue a litigation hold orally; however, in such cases, the Legal
Department shall follow up with a written litigation hold memorandum as soon as
practicable.
5.6 The litigation hold issued by the Legal Department shall at a minimum provide the
following information:
5.6.1 A factual description of the litigation or litigation threat or of the discovery request or
subpoena
5.6.2 A discussion of what constitutes evidence, the types of evidence that must be
preserved and the format in which the evidence must be preserved
5.6.3 A description of ESI and specific direction to discontinue routine or automatic
destruction of ESI, such as routine purging of email
5.7 In addition to distributing the litigation hold memorandum, the Legal Department may
also schedule a meeting with the recipients of the memorandum to help determine what
evidence may exist, where it may be located and how and where it will be preserved.
5.8 Upon receipt of the written litigation hold memorandum, the recipient shall sign the
certification at the bottom of the memorandum attesting that the recipient has received
and read the memorandum and will make arrangements to have the relevant information,
documents, files and storage devices preserved. The recipient shall return the signed
certification to the Legal Department.
5.9 In addition to the return of the signed certification, the Legal Department may request a
formal response from recipients detailing the steps that were taken to preserve the
evidence.
5.10 Recipients of the litigation hold notice shall gather and maintain documents and other
evidence in a secure, easily accessible location. In some instances, the evidence may be
turned over to the Legal Department.
5.11 For ESI, all sources of potentially relevant electronic data should be searched by the key
departments' records liaisons, the Technology Services Department or other designated
individual with the appropriate expertise, and any files that constitute evidence should be
appropriately stored in a location determined by the Legal Department in conjunction
with the Technology Services Department.
5.12 The Legal Department shall issue written reminders to key employees and officials every
three months for each continuing duty to preserve.
5.13 The Legal Department shall monitor the pending or threatened litigation and whenever
new information is obtained that could affect the scope of the litigation hold, the Legal
Department shall review the original litigation hold and revise and reissue as is necessary.
{00023739.DOC / 6} ADMINISTRATIVE DIRECTIVE: LITIGATION /LEGAL HOLDS 8/19/11
-3-
5.14 The Legal Department shall issue a notice of termination of the litigation hold to all
recipients of the original litigation hold memorandum when the Legal Department
determines that the duty to preserve has ended.
5.15 Compliance with a litigation hold issued by the Legal Department, whether in writing or
orally, is mandatory. Evidence preservation is a continuing obligation. Failure to preserve
evidence could subject the Town or its employees or officials to civil or criminal
penalties. In addition, employees who fail to comply with a litigation hold may be subject
to disciplinary action, up to and including termination of Town employment.
6.0 ATTACHMENTS
None
{00023739.DOC / 6} ADMINISTRATIVE DIRECTIVE: LrrIGATION /LEGAL HOLDS 8/19/11
-4-