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MARICOPA COUNTY INTERNAL POLICY Policy Title: LITIGATION HOLD NOTICE AND DOCUMENT PRESERVATION OF EVIDENCE DIRECTIVE Policy Number: A2107 Current Adoption Date: MM-DD-YYYY Current Implementation Date: MM-DD-YYYY Approved by: BOARD OF SUPERVISORS Board Agenda Number: C-##-##-###-#-## Original Adoption Date: MM-DD-YYYY I. PURPOSE To establish the process and the responsibilities of employees when Records must be preserved at the request of third parties and the Maricopa County Attorney’s Office. II. APPLICATION This Policy applies to all Maricopa County appointed departments, the Flood Control District of Maricopa County, and the Maricopa County Library District, (Special Districts). The Board of Supervisors is authorized to jointly adopt policies applying to the Special Districts under the Intergovernmental Agreement, C-06-18-393-6-00, approved on April 11, 2018. This policy also applies to employees of County elected offices unless the elected official has implemented a similar policy specific to his or her office. III. DEFINITIONS A. Appointing Authority: An elected official, the single administrative or executive head of a department/Special District, or the designated representative authorized to act in this capacity. B. Department Records Custodian (DRC): A person designated by the Appointing Authority to 1) exercise control of all department Records according to retention schedules, 2) be the point of contact for the department’s Records management, 3) serve as the Records coordinator for their department, and 4) help the County Records Manager make sure the department complies with this policy. C. Employee: All individuals who are employed by Maricopa County (e.g., Classified, Contract, Temporary, and Unclassified). D. Information Governance Department: Policy owner and responsible to oversee all aspects of County Records management and retention. The Information Governance Director is also the designated Maricopa County Records Manager. E. Legal Claim: A Legal Claim can come in the form of a notice of claim served on Maricopa County or an employee pursuant to A.R.S. § 12-821. et seq., a lawsuit filed against Maricopa County or an employee, or some other notice placing Maricopa County on notice of a potential legal action against Maricopa County and/or an employee of Maricopa County. Policy Title: LITIGATION HOLD NOTICE AND DOCUMENT PRESERVATION OF EVIDENCE DIRECTIVE Policy Number: A2107 Current Adoption Date: MM-DD-YYYY Page 2 of 7 F. Litigation Hold (also called Preservation of Evidence or Legal Hold): The process by which Maricopa County preserves Records related to the Legal Claim, typically initiated by a written Litigation Hold Notice. The purpose is to inform employees and other relevant parties that they must preserve their data for anticipated litigation. G. Maricopa County Attorney’s Office (MCAO): The Maricopa County Attorney’s Office is counsel for Maricopa County, it’s agencies and employees pursuant to A.R.S. § 11-531, et seq. As a part of its duties and powers, the MCAO defends the County, departments, and employees against various claims and lawsuits. H. Notice to Preserve Records (“Notice”): A written Notice to Maricopa County requiring Maricopa County and its employees to cease destruction of all Records within its care, custody, and control related to the claim or lawsuit, and to take steps to preserve those Records. This Notice may come from the Maricopa County Attorney’s Office or a third party. I. Enterprise Technology and Innovation (ETI) Department: For the purposes of this policy, ETI and/or the applicable IT Service Provider will provide technology support when Litigation Hold Notices and Document Preservations activities are required and will work with the Information Governance Department as required. J. Preservation of Evidence: See Litigation Hold definition. K. Records: All Records, materials, documents, information, and/or communications that relate or may pertain, in any way, to the Legal Claim, regardless of form, whether electronic or non- electronic, written, audible, real, or visual, created, received, maintained, or stored in the transaction of Maricopa County business, whether conducted at home or work, and may include, but is not limited to, physical materials or items, non-electronic materials or electronic information stored on desktop or laptop computers, hosted/cloud storage services, mobile/handheld devices, smartphones, tablets, v servers, removable media (e.g., tapes, disks, CDs, DVDs, Blu-rays, USBs, flash drives, memory sticks, etc.). It may also include e-mail, word processing documents, spreadsheets, databases, instant messages, text messages, calendars, voice messages, audio Recordings, photographs, videos, SharePoint files, telephone, or meeting logs, contact manager information, internet usage files, log data, metadata, or other computerized information or databases that may contain Records related or pertinent, in any way, to the Legal Claim. The term “documents” includes both “public Records” and “non-public Records.” And it is interpreted broadly to include paper, electronic, audio and video Recordings, computer-based Records (i.e. databases), e-Records/digital Records, and any other Recorded forms of information that may be related to the allegations or otherwise related. IV. POLICY A. Legal Requirement to Preserve Records Policy Title: LITIGATION HOLD NOTICE AND DOCUMENT PRESERVATION OF EVIDENCE DIRECTIVE Policy Number: A2107 Current Adoption Date: MM-DD-YYYY Page 3 of 7 In some situations, Maricopa County is legally required to preserve Records that may be relevant for legal or regulatory actions against Maricopa County. When this happens, the usual process of destroying Records is put on hold, and the Records must be preserved. B. Scope of Litigation Holds Litigation Holds apply to all relevant documents in the department’s possession, including documents from all divisions, sections, and units. This also includes any documents in the possession, custody, or control of individuals the department oversees. C. Types of Documents Covered Litigation Holds apply to both paper and electronic documents, including attachments, regardless of their format or storage method. D. Documents in Archives or Other Storage Litigation Holds also cover documents from the relevant time that may currently be in archives or other storage. These documents must be treated the same as other records under the Litigation Hold, and their destruction schedules must be paused until the MCAO lifts the hold. E. Responsibilities 1. Each Department is required to develop and maintain a Standard Operating Procedure (SOP) for effectively managing Litigation Holds (see Appendix C for an example). 2. The Department Records Custodian (DRC) is responsible for making sure their department follows all instructions in Litigation Hold letters whether they come from the MCAO or a third party. 3. When department Employees receive a Litigation Hold Notice and Document Preservation Directive (see Appendix A for an example), either from the MCAO or a third party, they must immediately complete the following actions: a. Inform the Department (see Appendix B for an example) i. The DRC must send an email to the entire department within one business day of receiving the Litigation Hold. 1) The email must inform the department about the Litigation Hold Notice and Document Preservation Directive. 2) The email must include copies of the documents (see Appendix B and Appendix C). Policy Title: LITIGATION HOLD NOTICE AND DOCUMENT PRESERVATION OF EVIDENCE DIRECTIVE Policy Number: A2107 Current Adoption Date: MM-DD-YYYY Page 4 of 7 3) The DRC must carbon copy (cc) the Information Governance Department and ETI and/or the applicable IT Service Provider on the above email. ii. If any employees or office representatives have or control any of the documents mentioned in the hold, the DRC must immediately take action to make sure those documents are preserved. This includes sending an additional email to all relevant staff, telling them to take the necessary steps to preserve the referenced documents. b. Create a Service Ticket for Electronic Records If the Records to be preserved are in electronic format, the DRC must create a service ticket with ETI and/or the applicable IT Service Provider and attach a copy of the Litigation Hold Notice and Document Preservation Directive to the service ticket. The DRC is responsible for making sure ETI and/or the applicable IT Service Provider knows about the Litigation Hold Notice and Document Preservation Directive and for working with them to find where the Records are located. c. Suspend Destruction of Relevant Records The DRC must make sure that any automatic deletion, overwriting, or any other destruction of Records that are subject to the Litigation Hold Notice and Document Preservation Directive is paused. A Litigation Hold Notice and Document Preservation Directive override any document retention policy that might allow or require Records to be destroyed after a certain date or event. This includes Records that could be automatically deleted by computer programs. d. Preserve All Relevant Records The DRC must: i. preserve any Records that are in paper form. ii. preserve any Records created after receiving the Litigation Hold Notice and Document Preservation Directive that are covered by the directive. iii. preserve any Records covered by the Litigation Hold Notice and Document Preservation Directive that may be in off-site storage. iv. preserve any Records covered by the Litigation Hold Notice and Document Preservation Directive in OnBase or other Electronic Document Management Systems. e. Identify Public Records Requests (PRR) for Covered Documents Policy Title: LITIGATION HOLD NOTICE AND DOCUMENT PRESERVATION OF EVIDENCE DIRECTIVE Policy Number: A2107 Current Adoption Date: MM-DD-YYYY Page 5 of 7 i. If the department receives a PRR for documents covered by the Litigation Hold Notice and Document Preservation Directive, the DRC must update the PRR application status to “Litigation Hold.” ii. If the identified public Records within the PRR application are marked as ’closed,’ contact the Information Governance Department for help. f. Maintain Records Unless specifically asked by the MCAO, the department does not need to send any Records to the MCAO. The MCAO will contact the department if Records are needed. Until then, the department must keep the original Records. g. Contact the Information Governance Department immediately with any questions. 4. When a Litigation Hold Release Notice is received (see Appendix D for an example), the DRC must: a. Confirm with the MCAO that the hold can be lifted if it was issued by a third-party. b. Inform the Department, the Information Governance Department, and ETI that the hold is lifted. F. Modification The Litigation Hold Notice and Document Preservation Directive may be modified by the MCAO or a third-party if there are changes in the scope of the legal matter. Any modifications will be communicated to everyone affected. G. Monitoring 1. The DRC must periodically confirm the department’s compliance with the Litigation Hold Notice and Document Preservation Directive to make sure the policy is being followed and to address any issues. 2. If the Litigation Hold Notice and Document Preservation Directive is from a third-party, the DRC must periodically contact the third-party to check on the status of the hold. H. Termination 1. The Litigation Hold Notice and Document Preservation Directive will end when the legal matter is resolved. The MCAO is the only authority who can issue a written notice informing the department(s) and the Information Governance Department when the hold can be lifted (see Appendix D for an example). Policy Title: LITIGATION HOLD NOTICE AND DOCUMENT PRESERVATION OF EVIDENCE DIRECTIVE Policy Number: A2107 Current Adoption Date: MM-DD-YYYY Page 6 of 7 a. If the hold is from a third-party, the DRC should forward the Litigation Hold Release Notice to the MCAO and cc the Information Governance Department to confirm that the hold can be lifted. 2. Once the MCAO lifts the Litigation Hold Notice and Document Preservation Directive in writing, the DRC must verify the disposition of the Records (i.e., if the Records are past their destruction date according to the department’s Records retention schedule, the DRC will follow the usual process for Records destruction). 3. The DRC will also update the PRR application status. Within the ’Internal Comments’ section, the DRC must note that the Litigation Hold Notice and Document Preservation Directive was lifted as directed by the MCAO and then close the PRR. I. Training All Employees will be trained on the Litigation Hold Notice and Document Preservation Directive Policy and procedures to make sure they understand. J. Compliance: Violations of this policy may be subject to disciplinary action, up to and including termination. K. Policy Review This Policy will be reviewed annually or as needed to ensure its effectiveness and compliance with applicable laws and regulations. L. Questions Direct all questions about this Policy to the Information Governance Department. Appendices to this Policy: • Appendix A: Litigation Hold Notice and Document Preservation Directive – MCAO Sample • Appendix B: Litigation Hold Department Notification – DRC Example • Appendix C: Litigation Hold Procedures/Process – Standard Operating Procedure Example • Appendix D: Litigation Hold Release - MCAO Sample Policy Title: LITIGATION HOLD NOTICE AND DOCUMENT PRESERVATION OF EVIDENCE DIRECTIVE Policy Number: A2107 Current Adoption Date: MM-DD-YYYY Page 7 of 7 • Revision History Version Revision Date Description of Revision 1 MM-DD-YYYY Initial version. (C-##-##-###-#-##)