Minnesota Department of Transportation

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MnDOT Policies

Legal & Litigation Holds

MnDOT Policy DM004
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Policy statement

The Minnesota Department of Transportation (MnDOT) is committed to meeting its legal obligations under state and federal law to preserve and produce evidence when MnDOT is a party or a witness in litigation or other legal proceedings. This policy establishes a process, by which MnDOT initiates, implements, enforces, modifies, and releases Legal and Litigation Holds to meet these requirements.

The Chief Counsel and Responsible Authority institutes a procedure, known as a Legal or Litigation Hold, when MnDOT reasonably anticipates litigation or is engaged in actual litigation or other legal proceedings involving MnDOT. When issued a Hold, MnDOT must identify, collect, preserve, and not alter, delete, or destroy any evidence in MnDOT’s possession, custody, or control. Evidence within MnDOT’s control may include data in the possession of contractors or consultants.

MnDOT’s normal records retention policy and destruction schedules are suspended for the duration of the Hold. All Holds remain in effect until the Chief Counsel and Responsible Authority issues instructions that the Hold is released and it is permissible to treat the preserved evidence in accordance with MnDOT’s normal records retention policy and schedule.

Reason for policy

  • MnDOT has a legal obligation to preserve evidence necessary for actual or reasonably anticipated litigation or other legal proceedings.
  • Avoid criminal and civil penalties for spoliation or the failure to take adequate steps to preserve evidence.
  • To provide guidance to MnDOT employees on what to do when there is actual or reasonably anticipated litigation or other proceedings.

Who needs to know this policy

All MnDOT employees shall comply with Legal and Litigation Holds. Managers and supervisors must comply with the account deletion process to review data, whether in printed or electronic format, of separating employees to ensure the preservation of data subject to a Hold in the appropriate repository.

Procedures

Identify Trigger Events

Trigger events occur either before or during the course of litigation, audits, government investigations or other proceedings, and create an obligation for MnDOT to preserve all relevant evidence. It is the responsibility of all MnDOT employees to identify trigger events and to notify the Office of Chief Counsel.

Analyze Preservation Duty

The Discovery Response Team analyzes trigger events to determine the duty to preserve evidence. The Discovery Response Team recommends to the Chief Counsel and Responsible Authority whether to issue a Hold or not.

Define the Scope of the Hold

The Discovery Response Team identifies the subject matter at issue and the “who, what, when and where” of the issue, and the Team identifies relevant data, data repositories, key players, and relevant periods.

Implement and Enforce the Hold

The Discovery Response Team drafts a Hold notice. The Chief Counsel and Responsible Authority signs and issues the Hold notice. The Team distributes the Hold notice and collects, preserves reviews, and produces evidence that will likely be relevant in actual or reasonably anticipated litigation or other legal proceedings.

Examine the Effectiveness and Modify the Hold

The Discovery Response Team confirms that the employees received the Hold notice and certifies that employees
understand the Hold and have taken the appropriate steps to preserve evidence. If necessary, the Team recommends
modifying the Hold based on new information obtained during the Hold, which may include broadening or narrowing the
scope of the Hold.

Monitor and Remove the Hold

The Discovery Response Team sends periodic reminders of the Hold, tracks evidence custodians, and issues the Hold to
additional employees as necessary. The Chief Counsel and Responsible Authority releases the Hold when it is no longer
required and notifies employees when it is permissible to treat the evidence in accordance with MnDOT’s normal records
retention policy and schedule.

Forms/instructions

Instructions for Mapping a Drive to the Litigation Collect Folder
Instructions for Collection of e-files Related to Legal or Litigation Holds

Definitions

Discovery Response Team

The Discovery Response Team consists of two permanent members, the Deputy Chief Counsel and the Records Manager. The Deputy Chief Counsel directs the Team. Additional members may include division directors, office directors, managers, supervisors, and the data practices compliance official, subject-matter experts of relevant work areas, human resources representatives, MN.IT representatives, or attorneys from the Minnesota Attorney General’s Office.

Evidence

Evidence consists of any data and other materials that are relevant to actual or reasonably anticipated litigation or other
legal proceedings, including:

  • Physical artifacts, records, documents, and data in printed formats, and
  • Electronic records, documents and data contained within:
    • Desktops
    • Laptops
    • Personal or shared network drives
    • Flash drives, CDs, DVDs, or external hard drives
    • Portable computing devices such as smartphones or tablets
    • Document management systems
    • Databases and servers
    • Personally-owned hardware or devices
    • Cloud computing services
    • Social media or collaborative technologies

Evidence Custodian

An evidence custodian is any MnDOT employee, consultant, or contractor having possession, custody, or control over evidence relevant to actual or reasonably anticipated litigation or other legal proceedings.

Hold

A formal directive issued by the Chief Counsel and Responsible Authority directing MnDOT employees, contractors, and consultants to identify, preserve, and not alter, delete, or destroy any evidence that may be relevant to any actual or reasonably anticipated litigation or other legal proceedings in which MnDOT is or is reasonably likely to be a participant.

Legal Hold

A formal directive issued by the Chief Counsel and Responsible Authority directing MnDOT employees, contractors, and consultants to identify, preserve, and not alter, delete, or destroy any evidence that may be relevant to any reasonably anticipated litigation or other legal proceedings in which MnDOT is or is reasonably likely to be a participant. A Legal Hold may convert to a Litigation Hold with the commencement of legal proceedings.

Litigation Hold

A formal directive issued by the Chief Counsel and Responsible Authority directing employees, contractors, and consultants to identify, preserve, and not alter, delete, or destroy any evidence that may be relevant to any actual litigation in which MnDOT is a named party or witness.

Relevant

Any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Minnesota Rules of Evidence, Rule 401.

Responsible Authority

MnDOT official designated by law or by the commissioner of transportation as the individual responsible for the collection, use and dissemination of all government data under Minnesota Statutes, Section §13, the Minnesota Government Data Practices Act.

Spoliation

Spoliation is the intentional or negligent destruction, mutilation, alteration, or concealment of evidence that may be relevant to anticipated or actual litigation or other legal proceedings.

Trigger Events

A trigger event occurs when MnDOT receives or is aware:

  • A summons or complaint properly served on the Minnesota Attorney General’s Office pursuant to Minnesota Rules of Civil Procedure 4.03(d);
  • A notice pursuant to Minnesota Statutes, Section §3.736, Subd. 5 & 6;
  • A complaint filed against MnDOT with the Minnesota Department of Human Rights or the United States Equal Employment Opportunities Commission;
  • Communications from an attorney threatening legal action against MnDOT; and
  • Anticipation that other evidence may result in legal action the MnDOT needs to address. Examples may include serious injury or death on MnDOT right-of-way, serious disputes involving a construction contract, or a serious employee grievance.

Responsibilities

Chief Counsel and Responsible Authority

  • Confirm the Discovery Response Team’s determination that an event has occurred.
  • Enforce Hold
  • Release Hold

Discovery Response Team

  • Identify events trigger the duty to preserve evidence;
  • Interview key experts, witnesses, and custodians;
  • Define scope of Hold:
    • Identify “who, what, when, where” and subject matter;
    • Identify relevant data, data repositories and relevant time frames;
    • Identify what is outside the scope of the Hold; and
    • If necessary, recommend modification of the scope of Hold.
  • Draft and distribute:
    • Written Hold notice;
    • Hold Modification notice;
    • Hold reminders; and
    • Hold release notices.
  • Verbally inform employees about the duty to preserve evidence;
  • Coordinate with MN.IT to:
    • Modify the operation of information systems to suspend deletion, prevent overwriting, or prevent general loss of evidence; and
    • Preserve equipment and software applications necessary to preserve evidence.
  • Create and maintain a record showing protocols and processes used to notify, identify, collect, preserve, review, and produce evidence relevant to the Hold;
  • Suspend any routine destruction of relevant evidence;
  • Search for and retrieve relevant evidence from MnDOT data repositories;
  • Coordinate the preservation of relevant evidence;
  • Manage and implement day-to-day activities related to the Hold; and
  • Periodically audit and inspect collections of evidence provided by employees and custodians.

Governance Council

The Governance Council provides leadership and strategic direction for a broad range of governance issues including but not limited to internal controls and accountability, data governance, administrative policy, data practices and records management.

MN.IT

  • Coordinate with the Discovery Response Team to:
    • Modify the operation of information systems to suspend deletions and prevent overwriting or general loss of evidence;
    • Preserve equipment and software applications necessary to preserve evidence;
    • Provide technical assistance to the Discovery Response Team to identify, collect, preserve, and not alter, delete or destroy any evidence that may be relevant to the Hold;
    • Provide technical assistance and maintenance of systems used to collect, maintain and preserve evidence relevant to a Hold.

MnDOT Employees/Evidence Custodian

  • Assist and follow the directives of the Discovery Response Team to identify, collect, and preserve evidence relevant to a Hold; and
  • Suspend deletion and prevent overwriting of data general loss of evidence relevant to the Hold.

Office of Chief Counsel

  • Develop policies and guidelines for processing a Hold;
  • Oversee the Hold process;
  • Champion the Hold process:
    • Serve as liaison with senior management;
    • Support efforts to ensure employees are educated and trained to understand and follow the policy and procedures for implementing a Hold; and
    • Commit people, time and financial resources to effectively implement a Hold;
    • Periodically examine and modify, as needed, the policies and guidelines for implementing a Hold;
    • Conduct periodic audits to ensure compliance with Hold policy; and
    • Serve as liaison with the Minnesota Attorney General’s Office for all discovery-related issues;
    • When engaged in litigation, coordinate with the Minnesota Attorney General’s Office to participate in and fulfill all Minnesota Court Rules, Rule 26 obligations, including responding to all initial disclosures and discovery requests;
    • Monitor judicial or agency attacks on Holds policies.

Related information

History of policy updates or amendments

Update

2013 Legal and Litigation Holds

Ownership

Responsible Senior Officer

Tracy Hatch
Deputy Commissioner/CFO/COO
tracy.hatch@state.mn.us
651-366-4811

Policy Owner

Elizabeth M. Parker
Chief Counsel
elizabeth.parker@state.mn.us
651-366-4841

Policy Contact

Peter Zuniga
Deputy Chief Counsel
Legal Services Section
peter.zuniga@state.mn.us
651-366-4831