Folks -

For those attending VAGARA, this article is directly related to Tom
Tokarz's presentation on Friday morning ("Document Production for Law
Suits").

Tom, Assistant County Attorney for Henrico County, jokingly said that he
did not know the Virginia Public Records Act inside out (or something to
that effect)...I spoke with him afterwards and pointed out that each and
every schedule (general or agency-specific) cover sheet, under item 6,
deals with investigations and/or legal proceedings.  For anyone not
familiar with said provision, it reads as follows:

"6. All known investigations or court cases involving the listed records
must be resolved before the records can be destroyed. Knowledge of
subpoenas, investigations or litigation that reasonably may involve the
listed records suspends any disposal or reformatting processes until all
issues are resolved." 


In discussion with some after the session, the question was who is
responsible for informing about holds?  Ought a Records Officer contact
legal counsel before any destruction?  While the article below deals
with electronic records and discovery, it has wider implications -
regardless of format.

Cheers!

Mark


G. Mark Walsh
Records & Information Analyst
Records Management and Imaging Services
Library of Virginia
(804) 692-3650

-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On
Behalf Of Larry Medina
Sent: Thursday, November 04, 2004 12:26 PM
To: [log in to unmask]
Subject: RAINdrip: Advice for Litigation Holds and E-Discovery

http://www.mondaq.com/article.asp?articleid=29351&email_access=on

 From the article:

In Judge Scheindlin's view, it is not sufficient for counsel to simply
notify employees that there is a litigation hold and expect that the
party will then retain and produce all relevant information. Counsel
must take reasonable affirmative steps to accomplish the following: (1)
"identify sources of discoverable information"; (2) "put in place a
litigation hold and make that known to all relevant employees by
communicating with them directly"; (3) reiterate the litigation hold
instructions "regularly" and "monitor compliance so that all sources of
discoverable information are identified and retained on a continuing
basis"; and (4) "call for employees to produce copies of relevant
electronic evidence, and...arrange for the segregation and safeguarding
of any archival media (e.g., back-up tapes) that the [client] has a duty
to preserve." See id. These steps are likely to become the standard of
"best practices" for counsel in future litigation.
While most of these practices are likely frequently followed, Judge
Scheindlin's prescription for regular reiteration of the litigation hold
and monitoring compliance probably are not common practices today. Given
the notoriety of the Zubulake case and Judge Scheindlin's reputation,
these practices will likely be adopted by other courts in evaluating
electronic discovery issues and requests for sanctions. Accordingly,
firms or counsel in any pending litigation or agency investigation who
fail to adopt these practices act at their peril.



@@@@@@@@@@@@@@@@@@@@@@
Larry Medina
...not all information is created equal !!

LLNL Records and Archives Group
B-411, Room 1307   2-7628
@@@@@@@@@@@@@@@@@@@@@@

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