Internal AG memos on email retention policy

7/26/2019 Internal AG memos on email retention policy.

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STATE OF NEW YORK

OFFICE OF THE ATTORNEY GENERAL

M E M O R A N D U M

TO: Members of the OAG

FROM: Edna Wells Handy

SUBJECT: Records Retention and Disposition Policy - E-mails

DATE: May 15, 2007

As you know, we are in the process of reviewing and

revising our Records Retention and Disposition Policies in theAttorney Generals Office.

Presently, we are guided by general policies established by

the New York State Archives Office of the Department of

Education, as well as the Attorney Generals 2005 E-mail policy

and Governor Spitzers 2007 policy.

The first thing to keep in mind is that e-mails are a

communication system, not a document management system. Saving

too many e-mails inevitably leads to an overloaded and

unproductive system, and the volume overwhelms the capacity of

our technology.1 The goal, therefore, is to read the e-mail,

save the message or the attached document if you wish, and

eliminate the e-mail message. This allows you to keep the

document and prevent the communication system from being

1 One of the most common e-mail problems is poor retention

practices. In many e-mail systems, individual users

maintain thousands of e-mails at any one time. This means

that users are not identifying and deleting the messages

they no longer need, and it probably means that they arenot transferring e-mail records out of their inboxes and

outboxes. Over time, overburdened e-mail systems can

become slow, and retaining unnecessary e-mail may lead to

delays in retrieving important e-mails from a large volume

of messages.

Managing E-mail Effectively, published by New York State Archives (2002),

at p. 6.

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excessively burdened.2

Former Attorney General Spitzer attempted to streamline the

system in 2005 by reducing allowable megabytes.3 That method

proved too difficult to implement. As Governor, he is now

modernizing the e-mail communication system by imposing a 90-day

time limit for retention of e-mails. We are conforming our

policy to match that of the Executive.

2 Following this simple procedure is consistent with established policy. In

2002, the New York State Archives of the Department of Education issued its

Revision to the General Retention and Disposition Schedule for New York

State Government Records pertaining to e-mails:

Authorization No. 90369 E-Mail Messages Incoming and outgoing e-mail communications, including attachments, used to distribute

information and documents, announce or schedule meetings, and conduct

formal and informal communications

Minimum Retention and Disposition: Destroy after messages

and attachments are opened and substantive materials have been saved

in appropriate electronic or paper file.

Justification: Many e-mail communications are suitable for

immediate destruction. Those messages and attachments which concern

substantive matters should be maintained in appropriate electronic or

paper files and disposed consistent with applicable authorizations for

those files.

3 Attorney General Spitzers 2005 Report, Email Records Retention and

Disposition Policy, made the following observations:

The escalating volume of messages has already resulted in storage and

maintenance costs which are unsustainable (at p. 2)

The convenience of using any email system as a document management

system does not outweigh the risk of using such a communications

system for long term document storage (at p. 2)

Limiting the amount of storage available to each employee for activeemail messages should encourage proper records management

activities (at p. 2)

The Attorney Generals email system is a communication system, and

shall not be used as a document management system, record keeping

system, or records management tool. (at p. 3)

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Our new and improved retention practice is as follows:

1- Save emails as demonstrated at

2- Eliminate the e-mail message.

It would be ideal to do this frequently. However, knowing

that we are all very busy, we are establishing a time-table that

is more flexible. We are re-configuring the system so that the

messages on your desktop will be centrally removed after sixty

days.4 This procedure will automatically send the messages into

the Trash bin on your desktop. If for some reason you need to

retrieve it from the Trash bin, you will have an additional

thirty days in which to do so. After this period of time, the

messages will be centrally removed from Trash.

All told, then, you will have access to your e-mails for 90

days. Please save any substantive messages and important

attachments before then. This will assure a volume that our

present technology can manage.

In the next few days, we will be setting up our centralized

e-mail maintenance system along these lines. Once it is in

place, please be certain to move and save all substantive

messages and attachments prior to the 90-day period.

I will, of course, alert you as to when the system is in

effect. If you have any questions, please do not hesitate to

ask. I thank you in advance for your cooperation.

#######################################

4 The sent messages will also be removed after sixty days.

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http://www.oag.lawnet/technology/pdfs/groupwise/saving_groupwise_email.pdf
http://www.oag.lawnet/technology/pdfs/groupwise/saving_groupwise_email.pdf


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email preservation folders in Outlook, or into a folder on the shared drive. Under our new emailpolicy, permanent email archives will no longer be an option. Instead, all users will have 1-, 5- and8-year email preservation folders in Outlook. Any email that is saved to these three folders will bepreserved for 1, 5, or 8 years after the date it was sent or received. IT will share more informationabout these folders how they work and how to use them when your Bureau is scheduled totransition from .pst folders to these new email preservation folders. Bureaus will be given a period oftime to cull their archives in Phase II, moving them either to the network, or to the 1-, 5-, and 8-yearfolders. However, we strongly urge you to use the next month to thin the email currently in yourarchive folders.

Obligation to Retain Emails That Are Records

Certain OAG emails are records and under state law must be transferred to our RecordManagement System for retention and disposition according to Arts and Cultural Affairs Law 57.05.A record is defined as all materials, including electronic files and email, (1) made or received inconnection with the transaction of public business and (2) which are appropriate for preservation . .. as evidence of the organization, functions, policies, decisions, procedures, operations, or otheractivities, of the Office. 8 N.Y.C.R.R. 188.2(h). Some examples of emails that may count asrecords include emails from clients regarding a case, minutes of meetings, documents that initiateor complete a business transaction, and final reports. The State Archives, the agency charged withimplementing and interpreting this statute, has concluded that most email communications are notrecords. Whether an email message (or its attachment) is a record depends on its content. A linkto the OAGs current Record Retention schedule can be found here. If you have records-relatedquestions, you may also email [email protected]. Please note that, although we are working on amore modern document management approach that will include electronic records, currently ouremail system may not be used to satisfy the OAGs obligations regarding retention of records. Ifyou have emails that must be preserved, you should continue to send that email to the OAGs Record

Management System in the same way you do today.

Shanti NayakChief Operating OfficerNYS Office of the Attorney General120 Broadway - 25th FloorNew York, NY [email protected]

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PRIVILEGED & CONFIDENTIAL

1/16/2015

New York State Office of the Attorney General

Internal Litigation Hold Policy: Preserving OAG Documents, Electronically

Stored Information (ESI) and Other Materials for Pending or Potential Civil

Litigation

Table of Contents

I. POLICY OBJECTIVES.......................................................................................................... 2

II. DEFINITIONS ........................................................................................................................ 2

Affected Parties ............................................................................................................ 21.

Electronically Stored Information (ESI) ................................................................... 22.

Litigation Requiring Special Preservation .................................................................... 23.

Litigation Hold ............................................................................................................. 3

4. Litigation Hold Notice .................................................................................................. 35.

Point of Contact ............................................................................................................ 36.

Potential Evidence ........................................................................................................ 37.

III. PROCEDURES................................................................................................................... 4

A. REPORTING INFORMATION RELATING TO A PENDING OR POTENTIAL

LITIGATION REQUIRING SPECIAL PRESERVATION ...................................................... 4

B. DETERMINING WHETHER AND HOW TO IMPLEMENT A LITIGATION HOLD

NOTICE ...................................................................................................................................... 4

Whether Litigation Requiring Special Preservation Is Reasonably Anticipated .......... 51.

Whether to Implement a Litigation Hold and its Scope ............................................... 52.

C. IMPLEMENTATION OF THE LITIGATION HOLD ...................................................... 6

D. PERIODIC REVIEW AND MAINTENANCE OF LITIGATION HOLD NOTICES ...... 7

E. REMOVAL OF LITIGATION HOLD ............................................................................... 7

F. DEPARTING EMPLOYEES ............................................................................................. 7

IV. RELATION TO OTHER POLICIES ................................................................................. 8

A.

OAG EMAIL RETENTION POLICY ............................................................................... 8

B. OAG RECORD RETENTION AND DISPOSITION SCHEDULE .................................. 8

C. FREEDOM OF INFORMATION LAW (FOIL) REQUESTS .......................................... 8

IV. CONCLUSION ................................................................................................................... 8

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I. POLICY OBJECTIVES

This policy applies to the Office of the Attorney General (OAG) as a custodian of Potential

Evidence in civil litigation, setting forth how and when special preservation measures will betaken to ensure that the OAG fulfills any legal obligation to preserve evidence.

1In particular, this

document identifies the circumstances in which a Litigation Hold will be issued to suspend the

normal operation of OAGs Email Retention Policy and OAGs Record Retention Schedule topreserve Potential Evidence from routine deletion according to those policies, and sets forth the

process for initiating, implementing, monitoring, and releasing a Litigation Hold.

The policy does not address OAGs obligation to advise clients about their preservation

obligations. Nor does this policy address OAGs obligation to preserve evidence in a criminalproceeding.

II. DEFINITIONS

Affected Parties1.

Affected Parties are all parties to whom a Litigation Hold Notice is addressed, including, butnot limited to, OAG employees (whether volunteer, temporary, permanent, full time or part

time). Affected Parties may include OAG employees who are custodians of Potential Evidence

from a former OAG employee. Affected Parties may also include OAG agents, contractors, andvendors. Although the OAG generally does not control the document retention policies of its

agents, contractors, and vendors, it may be appropriate to provide such third parties with notice

concerning the need to preserve Potential Evidence.

Electronically Stored Information (ESI)2.

Electronically stored information or ESI is computer data or electronic recorded media ofany kind that is stored in a digital medium from which it can be retrieved and examined. ESI

may include: (i) email (Outlook); (ii) documents (Word, Excel, PowerPoint, Adobe Acrobat,

etc.); (iii) databases (Litigation and case management databases such as Concordance andClearwell); or (iv) any other software program that stores ESI (text messages, web pages, or any

other software or electronic communication program or database). ESI may be stored on harddrives, network servers, smartphones, thumb drives, CDs, DVDs, floppy disks, computers, cell

phones, laptops, backup tapes, or any other electronic device or media used to do or store

government work (including personal smartphones and other personal devices used at home orotherwise for such purpose).

Litigation Requiring Special Preservation3.

Litigation Requiring Special Preservation means any litigation in which the routine operation

of OAGs retention schedule may not be sufficient to preserve evidence relevant to the litigation.

1The legal obligation of a party to preserve evidence is defined by New York and federal, common and statutory

law. See, e.g., Kronisch v. United States, 150 F.3d 112, 126-27 (2d Cir. 1998);Zubulake v. UBS Warburg LLC, 220

F.R.D. 212 (S.D.N.Y. 2003);Strong v. City of New York, 112 A.D.3d 15, 21-22 (1st Dept 2012); C.P.L.R. 3126;

Fed. R. Civ. Proc. 26 & 37. The appropriate application of this policy to particular circumstances should be assessedin light of this case law.

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It includes: (i) specific and identifiable civil litigation against the OAG or against an OAG

employee and relating to his or her conduct as an employee; (ii) civil litigation brought by theOAG on behalf of the People of the State of New York (i.e., affirmative litigation), if the conduct

of the OAG or OAG employees is the subject of a claim, defense, or document request in the

litigation; and (iii) civil litigation in which the OAG is defense counsel, if the conduct of the

OAG or of OAG employees is the subject of a document request in the litigation.This Policy is addressed only to Litigations Requiring Special Preservation. In other cases, the

OAG will preserve evidence consistent with its legal obligations, which will be satisfied by the

normal operation of the OAGs retention schedule.

Litigation Hold4.

Litigation Hold is the process of identifying and preserving Potential Evidence when aLitigation Requiring Special Preservation is pending or is reasonably anticipated.

Litigation Hold Notice5.

A Litigation Hold Notice is written notification to Affected Parties that Litigation Requiring

Special Preservation is pending or is reasonably anticipated, requiring the recipients to preservePotential Evidence in their possession or control.

Point of Contact6.

Each Litigation Hold Notice will designate a Point of Contact who will work with Counsels

office and relevant supervisors or executive staff to develop and implement that Litigation Hold.

The Point of Contact will be an attorney who is familiar and involved in the pending or

reasonably anticipated Litigation Requiring Special Preservation and has knowledge about otheremployees who may possess Potential Evidence. There may be more than one Point of Contact.

Potential Evidence7.

Potential Evidence is any tangible item that is possessed or controlled by the OAG,2 in any

physical form whatsoever including ESI, reports, statements, examinations, memoranda,opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps,

photos, letters, microfilms, computer tapes or discs, voicemails, that may reasonably be expectedto be requested in discovery, used in, or related to a specific and identifiable Litigation Requiring

Special Preservation. Therefore, Potential Evidence is usually limited to that which is relevant to

a reasonably anticipated claim or defense. The scope of Potential Evidence depends on the natureof the specific litigation or anticipated litigation, including the time periods involved, the

allegations made by the parties, and the subject matter of the litigation.

2Potential Evidence includes tangible items possessed or controlled by an OAG employee outside of the Office

(e.g., on personal computers or in files kept at home or on the cloud), if the tangible item was used for or reflects

government work. OAG employees are discouraged from maintaining work files at home or using personalcomputers to do government work (except through the OAGs remote access program),

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III. PROCEDURES

A.

REPORTING INFORMATION RELATING TO A PENDING OR POTENTIAL

LITIGATION REQUIRING SPECIAL PRESERVATION

The determination of whether a Litigation Requiring Special Preservation is pending orreasonably anticipated will depend on all of the facts and circumstances known to the OAG.

Accordingly, any employee with information that may be relevant to such a determination shall

immediately notify his/her Bureau Chief and Executive Deputy Attorney General (EDAG),who will then assess the facts and circumstances and recommend to the Counsel to the Attorney

General whether a Litigation Requiring Special Preservation has been brought or may be

reasonably anticipated.

The following is a non-exhaustive list of events that an employee should report to the BureauChief and EDAG as information that may be relevant to the OAGs determination of whether a

Litigation Requiring Special Preservation has been brought or is reasonably anticipated:

a) Receipt or anticipation of a document request or other discovery request regarding

the conduct of the OAG or of OAG employees;

b) Receipt or anticipation of a document preservation request or notice letterregarding the conduct of the OAG or of OAG employees;

c) Receipt or anticipation of a subpoena seeking information regarding the conduct

of the OAG or of OAG employees;

d) A communication threatening litigation against OAG or OAG employees is

received from a known adversary or his/her lawyer(s);

e) Receipt of notice of an administrative claim or complaint naming OAG or OAG

employees;

f) A complaint is made against the OAG or OAG employees to an external or

internal investigatory agency or unit;

g) Similar past experience or circumstances resulted in known and significantlitigation regarding the conduct of the OAG or of OAG employees;

h) Events that occurred involving the OAG or OAG employees resulted in knownand significant injury; or,

i) A claimant has initiated formal dispute resolution procedures against the OAG or

an OAG employee.

B.

DETERMINING WHETHER AND HOW TO IMPLEMENT A LITIGATION

HOLD NOTICE

Upon notice of an existing or potential Litigation Requiring Special Preservation (from anemployees report or otherwise), the relevant EDAG, with input from the relevant Bureau Chief

and AAGs, shall recommend to the Counsel to the Attorney General: (i) whether Litigation

Requiring Special Preservation has been initiated, or is reasonably anticipated; (ii) whether toinitiate a Litigation Hold; and (iii) the appropriate scope of any such Litigation Hold. In the case

of an existing or potential employment litigation against OAG, such recommendations shall be

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made by the OAGs Employment Counsel, with input from the Chief Operating Officer and

Director of Human Resources.

Whether Litigation Requiring Special Preservation Is Reasonably Anticipated1.

Upon receipt of the recommendations of the EDAG or Employment Counsel, Counsel to theAttorney General, or a designee, will determine whether a Litigation Requiring Special

Preservation has been initiated or is reasonably anticipated.3 In making that determination, the

following factors may be pertinent:

a) The nature and specificity of the complaint or threat;

b) The party making the claim;

c) The relationship between the parties;

d) Whether the threat is direct, implied, or inferred;

e) Whether the party making the claim is known to be aggressive or litigious;

f) Whether a party who could assert a claim is aware of the claim;

g)

The strength, scope, or value of a known or reasonably anticipated claim;

h) Reputable press coverage of the issue; and,

i) Prior experience of OAG.

These factors are not exhaustive. They and other considerations will be weighed reasonably andin good faith based in the context of what steps are reasonable and practicable based on the facts

and circumstances as they are known at the time. Later facts or information may require Counsel

to reevaluate or amend such determination.

Whether to Implement a Litigation Hold and its Scope2.

Counsel to the Attorney General, or a designee, will also determine whether to implement aLitigation Hold and its scope. In making those determinations, Counsel may consider the

following factors:

a) The nature of the issues raised in the matter, including reasonably anticipated

claims and defenses;

3Although State and Federal case law include a variety of phrases to describe when the obligation to preserve is

triggered, the case law has been synthesized as providing that a reasonable anticipation of litigation exists when an

organization is on notice of a credible probability that it will become involved in litigation. The SedonaConference, The Sedona Conference Commentary on Legal Holds: The Trigger & The Process, 11 Sedona Conf.

J. 265, 269 (2010) [hereinafter, Sedona Commentary]; VOOM HD Holding LLC v. EchoStar Satellite LLC, 93A.D.3d 33 (1st Dept 2012) (using credible probability formulation); see also Byrnie v. Town of Cromwell, 243

F.3d 93, 107 (2d Cir. 2001) (preservation obligation upon notice of the prospect of potential litigation); Fujitsu

Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001) (same); Kronisch v. United States, 150 F.3d 112, 126 (2d

Cir. 1998) (preservation obligation when a party should have known that the evidence may be relevant to future

litigation); Strong v. City of New York, 112 A.D.3d 15, 22 (1st Dept 2013) (preservation obligation when party wason notice that [the evidence] might be needed for future litigation).

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b) Experience in similar circumstances, including whether similar circumstances

resulted in document productions;

c) The document retention that would occur absent any Litigation Hold; and,

d) The sources and locations of Potential Evidence.4

The Chief Information Officer will be consulted as appropriate on OAG technical capabilitiesand other available technical solutions.

C.

IMPLEMENTATION OF THE LITIGATION HOLD

Once a determination to implement a Litigation Hold has been made, the EDAG, Bureau Chief

and Point of Contact shall together, and in consultation with Counsel or Counsels designee,determine the steps that will be taken to implement the Litigation Hold and prepare the materials

necessary to implement the Litigation Hold, including assignment of responsibilities for each

step. In the case of pending or reasonably anticipated employment litigation against OAG, such

determination shall be made by the Point of Contact, together with OAGs Employment Counsel,and in consultation with Counsel to the Attorney General or Counsels designee.

The steps taken to implement a Litigation Hold consistent with the law will depend on thecircumstances, but may include:

a) Identifying Affected Parties who are reasonably expected to have PotentialEvidence;

b) Directing the Administrative Services Bureau and Information Technology &

Systems Management Bureau that the disposition of records under the OAG

Schedule and the OAG Email Retention Policy be suspended or modified forAffected Parties to preserve Potential Evidence;

c) Issuing a Litigation Hold Notice to all Affected Parties. The Litigation Hold

Notice shall:

i) provide a basic description of the subject matter at issue;

ii) inform Affected Parties of their obligation to identify and immediatelypreserve all existing and newly created Potential Evidence;

5

iii)ask the recipient to confirm receipt;

iv)ask whether the recipient has Potential Evidence responsive to the Litigation

Hold Notice;

v) ask whether the recipient is aware of other OAG personnel (other than thosealready identified as an Affected Party) who might have Potential Evidence;

and,

4Sedona Commentary at 280-82 (describing and discussing the factors to be weighed in determining the scope of a

particular hold).

5Depending on the circumstances, a Litigation Hold Notice may either (or both) require Affected Parties to search

their own ESI for Potential Evidence or/and rely on IT to search ESI for Potential Evidence.

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vi)ask whether the recipient has any questions regarding the Litigation Hold

Notice or needs clarification.

d) Following up with Affected Parties to confirm receipt and compliance with theLitigation Hold Notice and to obtain answers to the various questions posed by

the Litigation Hold Notice;

e)

Creating and implementing a plan for reviewing ongoing compliance with the

Litigation Hold Notice;

f) Identifying search parameters (such as by custodian, date range, geographiclocation, file type, email suffix, or key word), to identify ESI containing Potential

Evidence for preservation. This process shall include collaboration with

(i) Information Technology and System Management staff to assess technologicalcapabilities, and (ii) employees knowledgeable about the pending or anticipated

litigation to ensure that search parameters are appropriate; and,

g) Identifying any unique obstacles to preservation and taking additional steps as

appropriate to address those challenges.

D.

PERIODIC REVIEW AND MAINTENANCE OF LITIGATION HOLD NOTICES

The Point of Contact, Bureau Chief, EDAG and/or Employment Counsel have a continuingobligation to report on the status of matters under Litigation Hold to the extent relevant to the

Litigation Hold procedures. For example, if new employees are assigned to the matter on

Litigation Hold, additional notices to Affected Staff must be generated.

Once a Litigation Hold Notice has been issued, the Counsel to the Attorney General (or adesignee) shall, at least biannually, review existing Litigation Hold Notices to determine the

need to maintain the Litigation Hold and/or to take additional actions.

E.

REMOVAL OF LITIGATION HOLD

Counsel to the Attorney General shall determine when a Litigation Hold Notice may be liftedand Potential Evidence no longer preserved because litigation is no longer pending or reasonably

anticipated or foreseen, or the Litigation Hold otherwise is no longer necessary. Counsel to theAttorney General shall communicate in writing to Affected Parties when he or she determines

that a Litigation Hold Notice may be lifted and Potential Evidence no longer preserved. Absent

other litigation holds, the lifting of a Litigation Hold Notice shall revive normal documentretention policies, including the Email Management Policy.

F.

DEPARTING EMPLOYEES

All departing employees in receipt of a Litigation Hold Notice shall inform (i) the Point of

Contact, and (ii) the employees supervisors (including Bureau Chief and EDAG) about any

impending departure from the OAG so that the OAG can arrange for preservation of PotentialEvidence, including ESI. Potential Evidence in the form of ESI shall be maintained by the

Information Technology & Systems Management Bureau. The employees direct supervisor

shall take responsibility of all other Potential Evidence under the control of the separatedemployee until further notice by the Counsel to the Attorney General or the Point of Contact.

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IV. RELATION TO OTHER POLICIES

A.

OAG EMAIL RETENTION POLICY

Absent a Litigation Hold, the OAG Email Retention Policy provides that emails sent or received

by OAG accounts will be deleted from email servers after 90 days. A Litigation Hold issuedpursuant to this policy will suspend or modify the automatic operation of the OAG Email

Retention Policy to preserve emails of Affected Parties that are Potential Evidence.

B.

OAG RECORD RETENTION AND DISPOSITION SCHEDULE

Absent a Litigation Hold, the OAG Record Retention and Disposition Schedule (the OAG

Retention Schedule)6and the General Retention and Disposition Schedule for New York State

Government Records (the General Retention Schedule)7provide legal authorization to dispose

of covered records (as defined by 8 N.Y.C.R.R. 188.2(h)) on a regularly scheduled basis after

minimum retention periods have been met. See Arts & Cultural Affairs Law 57.05(11), 8N.Y.C.R.R. Part 188.

8A Litigation Hold issued pursuant to this policy supersedes any provision

of the OAG Retention Schedule, the General Retention Schedule, or State law that would

otherwise authorize the destruction, deletion, or disposal of Potential Evidence while litigation ispending or reasonably anticipated.

C.

FREEDOM OF INFORMATION LAW (FOIL) REQUESTS

This policy sets forth the procedure for preserving Potential Evidence in a pending or reasonably

anticipated Litigation Requiring Special Preservation. A routine FOIL request does not require

preservation of Potential Evidence pursuant to this policy. FOIL preservation is governed byOAGs procedures for the handling of FOIL requests. Nothing in this policy modifies the

policies and procedures for the handling of FOIL requests.

IV. CONCLUSION

The consequences of failing to preserve evidence may be significant. It is important that OAG isprepared to preserve ESI and other evidence from the outset of a case, to avoid costly data

recovery processes, the possibility of court-imposed sanctions, or adverse inferences. In addition,violations of this policy and procedures may be subject to disciplinary action up to and including

dismissal.

If you have questions regarding Potential Evidence preservation, please contact the Counsels

Office.

6Available at http://www.oag.silvernet/facilities/pdfs/Records_Retention_Disposition_Schedule.pdf.

7Available at http://www.oag.lawnet/policies/GenSchedule.pdf.

8 Please email [email protected] if you have any questions relating to your obligation to retain records in the

absence of a Litigation Hold.

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