Litigation Retention Policy for Documentary Materials including Electronically Stored Information

1. PURPOSE

Both record and non-record documentary materials in paper or electronic format frequently become the subject of litigation. Employees create and maintain an increasing portion of business information using computers. This electronically stored information (“ESI”) must be managed alongside traditional paper records to ensure compliance with Federal laws and records management regulations. While not all papers or ESI are agency records, they may nevertheless be relevant evidence subject to discovery that is compelled or sanctioned by a court or administrative tribunal in litigation. Unmanaged and unidentified ESI residing on USDA computers also poses a threat to the Department's ability to document and reconstruct business and decision-making processes.

The purpose of this policy is to prescribe Departmentwide enterprise policies and responsibilities related to the retention of record and non-record documentary materials, including ESI, for discovery or other litigation-related purposes.

2. REFERENCES

DR 3080-001 (04/11/07) Records Management

DM 3570-001 (02/17/05) Disaster Recovery and Business Resumption Plans

DR 1700-002 (06/17/97) OIG Organization and Procedures

36 CFR 1222.12(b)(1) Definition of “Documentary Materials”

Federal Rules of Civil Procedure:

    a. Chapter III, Pleadings and Motions, Rule 16, Pre-Trial Conferences; Scheduling; Management.

    b. Chapter V, Depositions and Discovery, Rule 26(a), General Provisions Governing Discovery; Duty of Disclosure; Required Disclosures; Methods to Discover Additional Matter.