Page 11 - TIPJar Summer 2017

How can public agencies Public agencies should diligent about having evidence preservation is
adequately prepare for also work with their its employees preserve ideally taking place much
litigation holds? The key IT department staff agency communications sooner.
is proactive readiness, or consultant before a made through personal
as opposed to a reactive lawsuit or CPRA request accounts and devices, In any situation involving
response. An updated comes to pass to find then the job of the potential litigation, it is
records retention policy out who has electronic custodians may prove important for a public
that covers email and data and where it is more difficult and time agency to confer with
other electronic data is stored—especially if consuming. counsel to identify the
essential. Such a policy data is stored in private best steps to take with
would relate to records devices or accounts. If Certain types of events respect to evidence
in all management a plaintiff files a lawsuit, generate litigation so preservation, and
systems. For municipal a public agency’s IT often that it may be in then take those steps.
agencies, certain records experts can guide other a public agency’s best If the public agency
are subject to special public agency employees interest to preserve is able to produce
retention requirements; regarding the methods records before a claim is favorable evidence
otherwise, the general and costs of storage and even made. For example, prior to the initiation
rule is that such agencies retrieval of electronically employee disciplinary of formal litigation, it
retain records for two stored information, matters are often highly is quite possible that
years. School districts documents, and data contested, and may potential litigants will be
are subject to a different where preservation generate a large amount convinced not to pursue
set of rules and record requirements apply. of email traffic that is litigation at all. Even if
retention timelines, subject to preservation litigation is unavoidable,
which are discussed Another proactive step if the case ultimately work on the front end
in detail in a separate is to preserve potential makes its way to court. will help the public
article in this issue of evidence for incidents Law enforcement agency achieve a better
the TIP Jar. Therefore, that have generated an actions, especially those result. 
it is important for a administrative claim. involving the alleged
public agency to have Once a claim has been use of force, often
the ability to archive presented, a public generate lawsuits. In Mark K. Kitabayashi is a
and retrieve electronic agency is on notice it such cases, the policies, Partner in Lozano Smith’s
communications that may face a lawsuit so practices, and customs Los Angeles office and co-
they are required a litigation hold has of the agency are a likely chair of the firm’s Litigation
to maintain under already, in essence, been issue in the case, and a Practice Group.
applicable laws, as well submitted. This is a litigant is apt to ask for
as delineated processes great opportunity for the information about the Michael R. Linden is Senior
and schedules for agency’s risk managers agency’s involvement Counsel in Lozano Smith’s
the maintenance and to work in conjunction in similar incidents. A Fresno office.
destruction of records. with counsel to gather litigant may also request
Such a policy may also records relevant to the items like videos from
address the timeline or claim. The claimant is body cameras worn
cycle on which emails are required to set forth by law enforcement
regularly purged, subject all of the facts and officers. If a plaintiff
to any litigation hold that circumstances related claims civil rights
requires their retention. to the claim, so the violations under federal
It may also address public agency is justified law, he or she is not
how the maintenance in using the claim as required to present an
and destruction of such a guide for records administrative claim to
emails interact with any retention. Under these the public agency before
backup system the public circumstances, a public filing a lawsuit. In fact,
agency has in place agency should identify such a plaintiff may not
for such electronically all possible custodians file suit until up to two
stored information. of relevant records. If years after the event.
a public agency is not Therefore, public agency

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