Page 10 - TIPJar Summer 2017

Hold On:

LITIGATION HOLDS AND ELECTRONIC RECORDS

BY ou may have In general, a party costly “e-discovery”
MARK K. experienced receiving a litigation requests.
KITABAYASHI Ythe following hold has a duty to
AND situation working for a preserve evidence that it The California Supreme
MICHAEL R. LINDEN local public agency. You reasonably should know Court’s opinion in City
open your mail and you is relevant to litigation. of San Jose v. Superior
see a document entitled The clock may start from Court added a new layer
“Litigation Hold.” An the moment a public of complexity and cost
attorney wants your agency reasonably for public agencies
employer to preserve anticipates litigation, facing records requests
records for discovery in before a plaintiff ever under the California
a legal dispute, including files a lawsuit. This is Public Records Act
emails and other especially true for public (CPRA): Electronic
electronic data. Initially, agencies, as a would- communications sent
you have no idea where be litigant cannot file a by or stored in an
relevant emails and data lawsuit until after they employee or official’s
might be kept, whether have already presented personal device or
they are even being a claim for damages account may now be
saved or what policies administratively, and subject to disclosure
are in place regarding that claim has been under the CPRA. The
the retention of emails acted upon. court’s decision was not
and other electronically expressly prospective,
stored information. How While the cost of so if a search was
can such a situation be locating and storing pending at the time the
avoided? electronic data for decision was issued, a
lawsuit discovery public agency may be
A request for a litigation purposes can be high, obligated to expand it.
hold often arises before failure to do so may be The decision will likely
the filing of a lawsuit higher: Sanctions for also have implications
in order to ensure that destroying evidence for public agencies
information relevant to can include monetary involved in lawsuits and
the case is preserved. penalties, adverse jury related litigation holds.
Such requests are instructions or a default With our ever-changing
normally made by an judgment against your technologies, it is best
attorney representing an agency. Unfortunately, that public agencies are
individual who intends while courts have knowledgeable about
to sue the public agency. found certain broad what electronic data
In other instances, requests by litigants for they possess, in what
public agencies receive electronically stored form, and where and
litigation hold letters information overly how long it is stored,
from their own legal burdensome, public so they are poised to
counsel, based upon agencies generally properly respond to such
either existing or cannot use budget issues requests when received.
anticipated litigation. as a defense against

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