U.S.
DEPARTMENT OF AGRICULTURE
WASHINGTON,
D.C. 20250
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Number:
3903-001
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SUBJECT: Information Discovery and Litigation Support
Policy
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DATE:
August
12, 2011
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OPI: International Technology Services (ITS) – Governance
Services Division (GSD)
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Section Page
1. Purpose.. 2
2. SCOPE.. 2
3. SPECIAL INSTRUCTIONS/CANCELLATION.. 2
4. reLATED REferences. 2
5. policy.. 3
6. responsibilities. 4
7. definitions. 5
8. abbreviations. 6
APPENDIX A: IDLS PROCEDURES. A-1
1. oVERVIEW... A-1
2. Litigation HoldS. A-1
3. Subpoenas. A-3
4. Freedom of Information Act (FOIA) A-3
5. Forensic Requests. A-4
6. Other Types of Investigations. A-4
7. Additional Information.. A-5
8. DEFINITIONS. A-6
9. ABBREVIATIONS. A-7
This Regulation sets the roles and
responsibilities for all activities related to the retention (or preservation)
and/or production of Electronically Stored Information (ESI) between Customer
Agencies and International Technology Services (ITS). These activities are generally termed “Information
Discovery and Litigation Support (IDLS)” activities. IDLS activities do not include any paper or
physical documents. IDLS activities are
only for electronic data.
This Regulation
sets out the responsibilities of ITS and their Customer Agencies with respect to litigation holds, discovery
production, subpoenas, Freedom of Information Act (FOIA) requests, forensic
requests, and other types of official investigations that involve electronic data. This Regulation will cover only
electronically stored information and electronic records. Finally, this DR is not a Department-wide
policy for IDLS activities.
a.
Effective Date.
This policy will become effective immediately upon issuance of this
Regulation.
b.
Series Replaced.
Not applicable.
c.
Directives Rescinded. Not applicable.
c.
Departmental Regulation (DR) 3090-001, Litigation
Retention Policy for Documentary Materials including Electronically Stored
Information, dated May 28, 2008, http://www.ocio.usda.gov/directives/doc/DR3090-001.htm.
d.
Departmental Regulation (DR) 3099-001, Records
Management Policy for Departing Employees, Contractors, Volunteers and
Political Appointees, dated March 2, 2009, http://www.ocio.usda.gov/directives/doc/DR3099-001.htm.
f.
Memorandum, USDA Office of the Chief Information
Officer (OCIO) to all USDA Employees and Contractors, Minimum Safeguards for Protecting Personally Identifiable Information,
dated October 16, 2009.
g.
Memorandum, USDA Office of the Chief Information
Officer (OCIO) to all Agency Chief Information Officers, Departmental
Management, and Information System Security Program Managers, Logging and Handling of Data Extracts of
Sensitive and Personally Identifiable Information, dated April 12, 2010.
ITS, under the Office of the Chief
Information Officer (OCIO), provides comprehensive, fee-for-service information
technology (IT), associated operations, security, and technical support
services to a customer base of more than 45,000 USDA end users. ITS works for USDA agencies using ITS services
to deliver billions of dollars of programs, services, and financial
transactions to millions of farmers, ranchers, and citizens of rural America. Other customers include Departmental offices
that support USDA operations.
ITS’ vision is to innovate, deliver and
service world-class IT products and services that meet customer requirements
and exceed customer expectations. A
strategic program developed from this vision is strengthening ITS’ customer
partnerships by improving outreach, collaboration and understanding of customer
requirements.
As part of this strategic program, ITS is also
responsible for responding to the requests from Customer Agencies to produce,
acquire, retain and/or preserve any electronic information requested for purposes
of a pending and anticipated litigation.
ITS will support the coordination of FOIA requests, forensic requests,
as well as Congressional and other investigations.
All
IDLS activities will require planning, coordination and execution with Customer
Agencies and related USDA offices for purposes of preserving and/or producing
electronically stored information. IDLS
activities consists of request(s) for preservation and/or production of
electronic data (including related hardware retention) related to litigations,
subpoena, FOIA, forensic investigations, and any other investigations and/or
inquiries where electronic data are to be preserved and/or produced. These types of activities are above core
services for Customer Agencies. Please
see the IDLS Procedures in Appendix A for
more information.
a.
ITS Customer Agencies and Offices. The Customer Agencies will ensure that:
(1)
All requests for data preservation and/or production are
submitted in a timely manner to the IDLS Program in ITS.
(2)
Appoint Agency Subject Matter Expert(s) for purposes of
planning, coordination and execution of IDLS activities.
(3)
Coordinate with responsible Office of General Counsel
(OGC) attorney to confirm the planning, coordination and execution of IDLS
activities involving litigation.
(4)
Funding will be available for services rendered that
are above core services.
(5)
Compliance to Departmental policies on Personally
Identifiable Information is achieved.
b.
ITS. ITS will
ensure that:
(1)
All relevant policy and procedure documents are readily
available for consultation.
(2)
All requests made by Customer Agencies, OGC, and/or
Office of Inspector General (OIG) will be handled in a timely manner.
(3)
Comply with the procedures set out in Appendix
A.
(4)
Compliance to Departmental policies on Personally
Identifiable Information is achieved.
a.
Customer Agency.
ITS customers.
b.
Discovery.
Discovery is the process of identifying, locating, securing and
producing information and materials for the purpose of obtaining evidence for
use in a legal process. The term is also
used to describe the process of reviewing all materials, which may be
potentially relevant to the issues at hand and/or which may need to be
disclosed to other parties, and of evaluating evidence to prove or disprove
facts, theories or allegations. There
are several formalized methods of conducting discovery, the most common of
which are interrogatories, requests for production of documents and
depositions.
c.
Document.
A collective term for records, non-record
materials, and personal papers that refers to all media containing recorded
information, regardless of the nature of the media or the method(s) or
circumstance(s) of recording.
d.
Electronically Stored Information (ESI). Any information that is created, received,
maintained or stored on local workstations, laptops, central servers, personal
digital assistants, cell phones, or in other electronic media. Examples include, but are not limited to:
electronic mail (“email”), calendars, word processing documents and
spreadsheets, databases, videos, video files, digital images, audio files, text
messages, voicemails, activity logs, etc. ESI includes metadata.
e.
Information Discovery and Litigation Support (IDLS). Activities related to the preservation and/or
production of electronically stored information for the purposes of electronic
information discovery and litigation support.
f.
Litigation Hold. The
obligation of agencies, managers and individual employees to ensure that preservation
of documentary materials in their native format that might be or might become
relevant to pending or threatened litigation.
g.
Metadata.
Data that provides information about other data.
h.
Native Format.
The file format that an application normally reads and writes.
i.
Personally Identifiable Information (PII). Data which can be used to distinguish or trace
an individual’s identity. Examples
include: names, social security numbers
or medical records. Personally
Identifiable Information also includes data that, when combined with other identification
information, can be linked to a specific individual.
j.
Preservation.
The obligation of agencies, managers and individual employees to ensure
the preservation of documentary materials that might be or might become
relevant to pending or reasonably anticipated litigation.
k.
Production.
The process of delivering to another party or making available for that
party’s review, documents deemed responsive to a discovery request.
l.
Records. All
books, papers, maps, photographs, machine-readable materials, or other
documentary materials, regardless of physical form or characteristics, made or
received by an agency of the United States Government under Federal law or in
connection with the transaction of public business and preserved or appropriate
for preservation by that agency or its legitimate successor as evidence of the
organization, functions, policies, decisions, procedures, operations, or other
activities of the Government or because of the informational value of data in
them. Library and museum material made
or acquired and preserved solely for reference or exhibition purposes, extra
copies of documents preserved only for convenience of reference and stocks of
publications and of processed documents are not included. (44 U.S.C. 3301)
8.
abbreviations
DR Departmental Regulation
ESI Electronically
Stored Information
FOIA Freedom of Information Act
FRCP Federal Rules of Civil Procedure
GSD Governance Services Division
IDLS Information Discovery Litigation
Support
IT Information Technology
ITS International Technology
Services
OCIO Office of the Chief Information
Officer
OGC Office of General Counsel
OIG Office of Inspector General
PII Personable Identifiable
Information
USDA United States Department of
Agriculture
-END-
APPENDIX A: IDLS PROCEDURES
a.
This
section contains procedures for handling legal and other electronic information
requests coming into the United States Department of Agriculture (USDA)-Office
of the Chief Information Officer (OCIO)-International Technology Services (ITS). The following is a list of different types of
electronic information retention or retrieval requests that could be received
by ITS. Prior to execution, Customer
Agencies, responsible OGC attorney (in cases of litigation) and the ITS Information
Discovery Litigation Support (IDLS) Officer
must determine the type or category of the request on the Information Retention
and Retrieval (IRR) form.
b.
Categories
of IRR Requests:
(1)
Litigation
(a)
Litigation Hold
(b)
Litigation Production
(2)
Subpoena
(3)
Freedom of Information Act (FOIA)
(4)
Forensic Requests
(5)
Other Types of Investigations
(a)
Internal Investigations
(b)
Office of the Inspector General (OIG) Investigations
(c)
Congressional Inquiries
a.
Preservation/Retention Requests:
(1)
Determine if it affects the Email Exchange Service or
the Network Data Service.
(2)
Determine if current ITS retention process will fulfill
requirements.
(3)
If not, determine specific requirements and coordinate
with the Email Exchange Group or the Network Data Group to develop an estimate.
(4)
Present a time and cost estimate to requester for
approval.
(5)
Wait for approval.
(6)
Update IRR form with appropriate information and sign.
(7)
Present confirmation to requester that preservation
activities have started.
(8)
Wait for Production Request, the amount of time
necessary is on a case-by-cases basis.
b.
Production Requests:
(1)
Determine if request affects Email Exchange Service or
Network Data Service.
(2)
Present requirements to appropriate ITS group.
(3)
Coordinate in developing a time and cost estimate for
the production.
(4)
Present the estimate to requester for approval.
(5)
Wait for approval before productions starts.
(6)
Update IRR form with appropriate information and sign.
(7)
Log request into IDLS Case List.
(8)
Send Email Production Request to the appropriate
branch.
(9)
Follow-up with OGC for any additional requirements and
other USDA organizations as appropriate.
(10)
Report Customer Agency resources expended for
responding to production request.
(11)
Log all activities into IDLS Case List.
(12)
The Agency IDLS Officer will formally accept the
completed product via signed document, email or SharePoint.
(13)
Send in compliance with PII policies.
a.
All subpoenas issued to ITS employee(s), or CA (Customer
Agency) and/or their employees will be immediately forwarded to the current Point
of Contact (POC) for ITS IDLS.
b.
The IDLS POC will contact USDA’s OGC, as to which
regional attorney to forward the ITS subpoena for further processing and
instructions.
c.
The IDLS POC will forward the ITS subpoena to the named
regional attorney for further instructions.
d.
The IDLS POC will determine Preservation or Production
requirements, if any, and follow appropriate section above (2.a. or 2.b.)
as appropriate.
e.
The request will be properly logged and documented.
f.
The Agency IDLS
Officer (or originator of the subpoena) will formally accept the completed
product via signed document, email or SharePoint, if applicable.
a.
ITS personnel
will not react or respond to ANY FOIA request unless it comes through the
applicable Agency/Staff Office FOIA Officer and is accompanied by an IRR form
signed by the IDLS POC.
b.
FOIA Officers
will determine the requirements necessary to fulfill a FOIA request and
articulate those requirements with the necessary detail to ITS using the IRR
process.
c.
IRRs will come
to ITS through the IDLS POC.
d.
The IDLS POC will determine Preservation or Production
requirements, if any, and follow appropriate section above (2.a. or 2.b.)
as appropriate.
e.
The IDLS POC will determine other requirements from the
IRR, if any, and initiate IT Request(s) as necessary.
f.
The IDLS POC will coordinate and monitor progress of
the IT Request.
g.
The IDLS POC will be responsible for properly logging
and documenting IT Request.
h.
The Agency FOIA
Officer will acknowledge/confirm receipt of the completed product via signed
document, email or SharePoint.
a.
All IRR will
come to ITS through the IDLS POC.
b.
The IDLS POC will determine Preservation or Production
requirements, if any, and follow appropriate section above (2.a. or 2.b.)
as appropriate.
c.
IDLS POC will coordinate and monitor progress of the IT
Request.
d.
IDLS POC will properly log and document the request into
the ITS Production Request Log.
e.
IRR progress will be monitored by the IDLS POC and
periodically reported to requesting agency.
f.
The Agency IDLS
Officer will formally accept the completed product via signed document, email
or SharePoint, if applicable.
a.
The type
of investigations that falls under this category includes:
(1)
Internal Investigations;
(2)
Office of the Inspector General (OIG) Investigations;
and
(3)
Congressional Investigations.
b.
All IRR will
come to ITS through the IDLS POC.
c.
The IDLS POC will determine Preservation or Production
requirements, if any, and follow appropriate section above (2.a. or 2.b.)
as appropriate.
d.
IDLS POC will determine other requirements from the
IRR, if any, and initiate IT Request(s) as necessary.
e.
IDLS POC will coordinate and monitor progress of the IT
Request.
f.
IDLS POC will properly log and document the request into
the ITS Production Request Log.
g.
IRR progress will be monitored by the IDLS POC and
periodically reported to requesting agency.
h.
The Agency IDLS
Officer will formally accept the completed product via signed document, email
or SharePoint, if applicable.
a.
IDLS activities
are above core for ITS services.
Therefore, the affected Customer Agency or office(s) must pay for the
cost to either preserve and/or produce the requested data.
b.
ITS will not make
any determinations or interpretations on requirements necessary to fulfill the
different categories of IDLS activities.
These responsibilities rest with the Customer Agencies or office(s).
c.
Each request
must have a cost and time estimate associated with it and must be approved
before services are rendered, unless existing system processes are sufficient.
a.
Chain of Custody. Documentation
and testimony regarding the possession, movement, handling, and location
of evidence from the time it is obtained to the time it is presented in court;
used to prove that evidence has not been altered or tampered with in any way;
necessary both to assure admissibility and probative value.
b.
Customer Agency.
ITS customers.
c.
Discovery.
Discovery is the process of identifying, locating, securing and
producing evidence, including testimony, things, information, and materials for
utilization in the legal process. The
term is also used to describe the process of reviewing all materials, which may
be potentially relevant to the issues at hand and/or which may need to be
disclosed to other parties, and of evaluating evidence to prove or disprove
facts, theories or allegations. There
are several formalized methods of conducting discovery, the most common of
which are interrogatories, requests for production of documents and
depositions.
d.
Document.
A collective term for records,
non-record materials, and personal papers that refers to all media containing
recorded information, regardless of the nature of the media or the method(s) or
circumstance(s) of recording.
e.
Electronically Stored Information (ESI). Any information that is created, received,
maintained or stored on local workstations, laptops, central servers, personal
digital assistants, cell phones, or in other electronic media. Examples
include, but are not limited to: electronic mail (“email”), calendars, word
processing documents and spreadsheets, databases, videos, video files, digital
images, audio files, text messages, voicemails, activity logs, etc.
ESI includes metadata.
f.
Image. To
image a hard drive is to make an identical copy of the hard drive, including
empty sectors. Also known as creating a
“mirror image”.
g.
IDLS Officer. The ITS Point of Contact for customer agencies
to submit data requests.
h.
Information Discovery and Litigation Support (IDLS). Activities related to the preservation and/or
production of electronically stored information for purposes of electronic
information discovery and litigation support.
i.
Information Retention and Retrieval (IRR). The standard format/process for requesting
electronically stored information in the ITS-covered infrastructure.
j.
Litigation Hold.
The obligation of agencies,
managers and individual employees to ensure that preservation of documentary
materials that might be or might become relevant to pending or threatened
litigation. If the documentary material
was created in electronic format, it must be preserved in that original native
format.
k.
Media. An
object or device, such as a disk, tape or other device, on which data is
stored.
l.
Point of Contact. An assigned individual/position with
delegated authority to process/request Information
Retention and Retrieval (IRR) or otherwise act as a Customer Agency’s
proxy.
m.
Preservation.
The obligation of agencies, managers and individual employees to ensure
the preservation of documentary materials that might be or might become
relevant to pending or threatened litigation.
If the documentary material was created in electronic format, it must be
preserved in that original native format.
n.
Production.
The process of delivering to another party or making available for that
party’s review, documents deemed responsive to a discovery request.
o.
Records. All
books, papers, maps, photographs, machine-readable materials, or other
documentary materials, regardless of physical form or characteristics, made or
received by an agency of the United States Government under Federal law or in
connection with the transaction of public business and preserved or appropriate
for preservation by that agency or its legitimate successor as evidence of the
organization, functions, policies, decisions, procedures, operations, or other
activities of the Government or because of the informational value of data in
them. Library and museum material made or acquired and preserved solely for
reference or exhibition purposes, extra copies of documents preserved only for
convenience of reference and stocks of publications and of processed documents
are not included. (44 U.S.C. 3301)
CA Customer
Agency(ies)
DOJ Department
of Justice
ESI Electronically Stored Information
FOIA Freedom of Information Act
IDLS Information
Discovery Litigation Support
IRR Information Retention and Retrieval
IT Information
Technology
ITS International
Technology Services
OCIO Office
of the Chief Information Officer
OGC Office
of the General Counsel
OIG Office
of Inspector General
POC Point
of Contact
USDA United
States Department of Agriculture
-END-