January 2011 - National Labor Relations Board

11862 E-DISCOVERY AND GUIDANCE FOR MANAGING ELECTRONICALLY STOREDINFORMATIONNo marks should be made on documentary evidence. Notes, questions, remarks,or instructions should be inserted on separate sheets and not on the face of the document.This is particularly applicable to the practice that sometimes exists of writing on thedocument the name(s) of the person(s) in the Regional Office to whom it is to be routed;separate routing slips should be used for this purpose.11862 E-Discovery and Guidance for Managing Electronically Stored InformationThe Federal Rules of Civil Procedure (FRCP) address discovery requestsin civil litigation covering all types of information including information that iselectronically stored. These discovery rules apply to Regional Offices as well as to therest of the Agency in civil proceedings before the Federal courts. Examples of suchlitigation include case handling matters involving injunctions and contempt, and speciallitigation matters involving personnel and procurement related litigation. GC Memo 07-09 and OM Memo 07-64 address electronic discovery (E-Discovery) requests and setforth comprehensive guidance and best practices which should be followed for managingelectronically stored information.NOTE: The guidance set forth in GC Memo 07-09 and OM Memo 07-64concerning the storage of electronic documents applies to the handling of all casesfrom initial filing through the conclusion of each case. Regional Offices must beable to describe and follow their records storage and retention policy and be able toidentify, locate, and preserve relevant electronic documents. Accordingly, eachRegional Office is responsible for implementing and following a written policy forrecords storage and retention of electronic documents.OM Memo 07-64 briefly explains the E-Discovery amendments to the FRCP, theimpact of such amendments on Regional Offices, and specifies steps Regions must taketo ensure their ability to comply with such amendments. The memorandum also setsforth best practices regarding what electronic documents must be kept and where theyshould be kept as well as the procedures which must be followed during a “litigationhold.”11863 Litigation HoldA litigation hold is a directive to suspend normal disposition procedures andpreserve documents, including electronically stored information, which may be related topending or reasonably foreseeable litigation. See OM Memos 07-64 and 10-48. Suchrequires preservation of all related documents, both paper and electronic, in the form theyexisted when the litigation hold issues as well as the preservation of any related paper orelectronic documents created after issuance of the litigation hold. A litigation hold maybe implemented by the Regional Office, Special Counsel, or other General Counselbranches within the Agency. The Regional Office should implement a litigation holdwhenever it recommends initiating or decides to initiate proceedings that may result inRevised 01/11