HomeMy WebLinkAbout2014-09-09; City Council; Resolution 2014-2151 RESOLUTION NO. 2014-215
2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, ADOPTING A NEW CITY COUNCIL POLICY REGARDING
LITIGATION HOLDS
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5 The City Council of the City of Carlsbad does hereby resolve as follows:
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] 1 WHEREAS, the failure to implement a litigation hold to preserve potentially relevant
12 evidence can result in serious civil litigation consequences such as monetary or procedural
sanctions, adverse inference instructions, vicarious liability for responsible senior management
and potential default; and
WHEREAS, it is a best practice to adopt a litigation hold policy in order to ensure that
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WHEREAS, whenever litigation is reasonably anticipated, threatened, or is pending
against the city, CMWD, or any other city entity, its officials or employees, the organization has
a duty to preserve potentially relevant evidence, including electronically stored information;
and
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J y city staff is knowledgeable of the process for initiating, implementing, monitoring and releasing
18 litigation holds.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
California, as follows that:
1. The above recitations are true and correct.
2. That City Council Policy No. 82 Litigation Holds is adopted as shown in Exhibit
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24 A to this resolution.
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EXHIBIT
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PASSED, APPROVED AND ADOPTED at a Regular Meeting ofthe City Council ofthe City
of Carlsbad on the 9th day of September 2014, by the following vote to wit:
AYES:
NOES:
Council Members Hall, Packard, Wood, Schumacher, Blackburn.
None.
ABSENT: None.
MATT HALL, Mayor
ATTEST:
BARBARA ENGLESON , Citf€lerk
'i, ^ .\^^
^ Policy No. 82
<^Wp' CITY OF Date Issued:
W /^ADI CDAP^ Effective Date: Immediately
^AKL:)bAU Resolution NO
Cancellation Date:
Supersedes No.
Council Policy Statement
Category:
Specific Subject: Litigation Holds
PURPOSE:
To ensure that the city fulfills its duty to preserve evidence whenever litigation is reasonably anticipated,
threatened or pending against the city.
BACKGROUND:
When a civil lawsuit is filed, the parties engage in a pre-trial process called "discovery" whereby each
party to the lawsuit may request records, documents and other tangible evidence (collectively
"evidence") from the other parties to the lawsuit. Potential relevant evidence as well as any evidence
that may be reasonably calculated to lead to admissible evidence at trial may be subject to a discovery
request. Recent rule changes and case decisions have codified a party's duty to preserve evidence. This
duty arises at the point in time when litigation is reasonably anticipated, whether the organization is the
initiator or the target of litigation. The duty arises not only during litigation but also extends to that
period before the litigation when a party reasonably should know that the evidence may be relevant to
anticipated litigation.
Whenever litigation is reasonably anticipated, threatened, or pending against the city, CMWD, or any
other city entity, city official, or city employee, the city must take reasonable and good faith steps to
preserve potentially relevant and discoverable information and tangible evidence. The duty to preserve
(and ultimately, to produce) evidence requires a party to identify, locate, and maintain information,
including electronically stored information ("ESI") and tangible evidence that is relevant to specific and
identifiable litigation.
Discoverable evidence may include paper documents from file folders and file cabinets, tangible
evidence (such as a stop sign or piece of corroded pipe), or ESI. ESI is essentially any electronic
information that could serve as evidence in civil litigation. Example of current ESI devices: local hard
drives, network hard drives, portable hard drives, "cloud" storage, e-mail, shared storage, backup
systems, mobile devices (e.g. smartphones, tablets, etc.) and removable media (e.g. CDs, DVDs, flash
drives, etc.). This list may expand as new storage devices are invented.
POLICY:
1. When civil litigation is reasonably anticipated the city must suspend its routine document
retention/destruction policy and preserve its historical and prospective ESI, paper and other
tangible records from destruction (collectively "discoverable evidence").
2. If litigation is commenced against the city and/or its employees, the city will need to (1) identif/
and provide a description by category and location of all discoverable evidence in its control
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EXHIBITA
Policy No. 82
(including any vendors or consultants) which may be relevant to the case; and (2) produce and
transfer reasonably accessible discoverable evidence in original/native format to a central
repository for review and analysis. Discoverable evidence that is privileged or not reasonably
accessible must be documented.
3. The City Attorney is responsible for determining when a legal hold should commence or be
revoked and for directing the legal process to fulfill the discovery requirements.
4. The legal hold process will be managed by the City Attorney, City Manager, City Clerk, and
Information Technology Director (collectively "Executive Team"). The Executive Team will be
assisted by the department(s) responsible for record retention and production, as well as
personnel associated with the subject matter ofthe litigation.
5. The City Manager will issue an Administrative Order which outlines the specific procedures
associated with a litigation hold and which is consistent with this City Council Policy.
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