STATE OF NEW YORK

OFFICE OF THE ATTORNEY GENERAL

MEMORANDUM

TO:
FROM:
SUBJECT:
DATE:

Members of the OAG

Edna Wells Handy
Records Retention and Disposition Policy - E-mails
May 15, 2007

As you know, we are in the process of reviewing and

revising our Records Retention and Disposition Policies in the
Attorney Generals Office.
Presently, we are guided by general policies established by
the New York State Archives Office of the Department of
Education, as well as the Attorney Generals 2005 E-mail policy
and Governor Spitzers 2007 policy.
The first thing to keep in mind is that e-mails are a
communication system, not a document management system. Saving
too many e-mails inevitably leads to an overloaded and
unproductive system, and the volume overwhelms the capacity of
The goal, therefore, is to read the e-mail,
our technology.1
save the message or the attached document if you wish, and
eliminate the e-mail message.
This allows you to keep the
document and prevent the communication system from being

One of the most common e-mail problems is poor retention

practices. In many e-mail systems, individual users
maintain thousands of e-mails at any one time. This means
that users are not identifying and deleting the messages
they no longer need, and it probably means that they are
not transferring e-mail records out of their inboxes and
outboxes. Over time, overburdened e-mail systems can
become slow, and retaining unnecessary e-mail may lead to
delays in retrieving important e-mails from a large volume
of messages.

Managing E-mail Effectively, published by New York State Archives (2002),

at p. 6.

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excessively burdened.2
Former Attorney General Spitzer attempted to streamline the
system in 2005 by reducing allowable megabytes.3 That method
proved too difficult to implement. As Governor, he is now
modernizing the e-mail communication system by imposing a 90-day
time limit for retention of e-mails.
We are conforming our
policy to match that of the Executive.

Following this simple procedure is consistent with established policy. In

2002, the New York State Archives of the Department of Education issued its
Revision to the General Retention and Disposition Schedule for New York
State Government Records pertaining to e-mails:
Authorization No. 90369 E-Mail Messages Incoming and outgoing email communications, including attachments, used to distribute
information and documents, announce or schedule meetings, and conduct
formal and informal communications
Minimum Retention and Disposition: Destroy after messages
and attachments are opened and substantive materials have been saved
in appropriate electronic or paper file.
Justification: Many e-mail communications are suitable for
immediate destruction. Those messages and attachments which concern
substantive matters should be maintained in appropriate electronic or
paper files and disposed consistent with applicable authorizations for
those files.
3

Attorney General Spitzers 2005 Report, Email Records Retention and

Disposition Policy, made the following observations:
The escalating volume of messages has already resulted in storage and
maintenance costs which are unsustainable (at p. 2)
The convenience of using any email system as a document management
system does not outweigh the risk of using such a communications
system for long term document storage (at p. 2)
Limiting the amount of storage available to each employee for active
email messages should encourage proper records management
activities (at p. 2)
The Attorney Generals email system is a communication system, and
shall not be used as a document management system, record keeping
system, or records management tool. (at p. 3)

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Our new and improved retention practice is as follows:

1- Save emails as demonstrated at

http://www.oag.lawnet/technology/pdfs/groupwise/saving_groupwise_email.pdf
2- Eliminate the e-mail message.
It would be ideal to do this frequently. However, knowing
that we are all very busy, we are establishing a time-table that
is more flexible.
We are re-configuring the system so that the
messages on your desktop will be centrally removed after sixty
days.4 This procedure will automatically send the messages into
the Trash bin on your desktop. If for some reason you need to
retrieve it from the Trash bin, you will have an additional
thirty days in which to do so. After this period of time, the
messages will be centrally removed from Trash.
All told, then, you will have access to your e-mails for 90
days. Please save any substantive messages and important
attachments before then. This will assure a volume that our
present technology can manage.
In the next few days, we will be setting up our centralized
e-mail maintenance system along these lines. Once it is in
place, please be certain to move and save all substantive
messages and attachments prior to the 90-day period.
I will, of course, alert you as to when the system is in
effect. If you have any questions, please do not hesitate to
ask. I thank you in advance for your cooperation.

#######################################

The sent messages will also be removed after sixty days.

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email preservation folders in Outlook, or into a folder on the shared drive. Under our new email
policy, permanent email archives will no longer be an option. Instead, all users will have 1-, 5- and
8-year email preservation folders in Outlook. Any email that is saved to these three folders will be
preserved for 1, 5, or 8 years after the date it was sent or received. IT will share more information
about these folders how they work and how to use them when your Bureau is scheduled to
transition from .pst folders to these new email preservation folders. Bureaus will be given a period of
time to cull their archives in Phase II, moving them either to the network, or to the 1-, 5-, and 8-year
folders. However, we strongly urge you to use the next month to thin the email currently in your
archive folders.
Obligation to Retain Emails That Are Records
Certain OAG emails are records and under state law must be transferred to our Record
Management System for retention and disposition according to Arts and Cultural Affairs Law 57.05.
A record is defined as all materials, including electronic files and email, (1) made or received in
connection with the transaction of public business and (2) which are appropriate for preservation . .
. as evidence of the organization, functions, policies, decisions, procedures, operations, or other
activities, of the Office. 8 N.Y.C.R.R. 188.2(h). Some examples of emails that may count as
records include emails from clients regarding a case, minutes of meetings, documents that initiate
or complete a business transaction, and final reports. The State Archives, the agency charged with
implementing and interpreting this statute, has concluded that most email communications are not
records. Whether an email message (or its attachment) is a record depends on its content. A link
to the OAGs current Record Retention schedule can be found here. If you have records-related
questions, you may also email Records@ag.ny.gov. Please note that, although we are working on a
more modern document management approach that will include electronic records, currently our
email system may not be used to satisfy the OAGs obligations regarding retention of records. If
you have emails that must be preserved, you should continue to send that email to the OAGs Record
Management System in the same way you do today.

Shanti Nayak
Chief Operating Officer
NYS Office of the Attorney General
120 Broadway - 25th Floor
New York, NY 10271
212-416-6303
Shanti.Nayak@ag.ny.gov

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New York State Office of the Attorney General

Internal Litigation Hold Policy: Preserving OAG Documents, Electronically
Stored Information (ESI) and Other Materials for Pending or Potential Civil
Litigation
Table of Contents
I.

POLICY OBJECTIVES.......................................................................................................... 2

II. DEFINITIONS........................................................................................................................ 2
1.

Affected Parties ............................................................................................................ 2

2.

Electronically Stored Information (ESI) ................................................................... 2

3.

Litigation Requiring Special Preservation .................................................................... 2

4.

Litigation Hold ............................................................................................................. 3

5.

Litigation Hold Notice .................................................................................................. 3

6.

Point of Contact ............................................................................................................ 3

7.

Potential Evidence ........................................................................................................ 3

III.

PROCEDURES................................................................................................................... 4

A. REPORTING INFORMATION RELATING TO A PENDING OR POTENTIAL

LITIGATION REQUIRING SPECIAL PRESERVATION ...................................................... 4
B. DETERMINING WHETHER AND HOW TO IMPLEMENT A LITIGATION HOLD
NOTICE ...................................................................................................................................... 4
1.

Whether Litigation Requiring Special Preservation Is Reasonably Anticipated .......... 5

2.

Whether to Implement a Litigation Hold and its Scope ............................................... 5

C. IMPLEMENTATION OF THE LITIGATION HOLD ...................................................... 6

D. PERIODIC REVIEW AND MAINTENANCE OF LITIGATION HOLD NOTICES...... 7
E. REMOVAL OF LITIGATION HOLD ............................................................................... 7
F. DEPARTING EMPLOYEES ............................................................................................. 7
IV.

RELATION TO OTHER POLICIES ................................................................................. 8

A. OAG EMAIL RETENTION POLICY ............................................................................... 8

B. OAG RECORD RETENTION AND DISPOSITION SCHEDULE .................................. 8
C. FREEDOM OF INFORMATION LAW (FOIL) REQUESTS .......................................... 8
IV.

CONCLUSION ................................................................................................................... 8

1/16/2015
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I.

POLICY OBJECTIVES

This policy applies to the Office of the Attorney General (OAG) as a custodian of Potential
Evidence in civil litigation, setting forth how and when special preservation measures will be
taken to ensure that the OAG fulfills any legal obligation to preserve evidence.1 In particular, this
document identifies the circumstances in which a Litigation Hold will be issued to suspend the
normal operation of OAGs Email Retention Policy and OAGs Record Retention Schedule to
preserve Potential Evidence from routine deletion according to those policies, and sets forth the
process for initiating, implementing, monitoring, and releasing a Litigation Hold.
The policy does not address OAGs obligation to advise clients about their preservation
obligations. Nor does this policy address OAGs obligation to preserve evidence in a criminal
proceeding.
II.

DEFINITIONS
1. Affected Parties

Affected Parties are all parties to whom a Litigation Hold Notice is addressed, including, but
not limited to, OAG employees (whether volunteer, temporary, permanent, full time or part
time). Affected Parties may include OAG employees who are custodians of Potential Evidence
from a former OAG employee. Affected Parties may also include OAG agents, contractors, and
vendors. Although the OAG generally does not control the document retention policies of its
agents, contractors, and vendors, it may be appropriate to provide such third parties with notice
concerning the need to preserve Potential Evidence.
2. Electronically Stored Information (ESI)
Electronically stored information or ESI is computer data or electronic recorded media of
any kind that is stored in a digital medium from which it can be retrieved and examined. ESI
may include: (i) email (Outlook); (ii) documents (Word, Excel, PowerPoint, Adobe Acrobat,
etc.); (iii) databases (Litigation and case management databases such as Concordance and
Clearwell); or (iv) any other software program that stores ESI (text messages, web pages, or any
other software or electronic communication program or database). ESI may be stored on hard
drives, network servers, smartphones, thumb drives, CDs, DVDs, floppy disks, computers, cell
phones, laptops, backup tapes, or any other electronic device or media used to do or store
government work (including personal smartphones and other personal devices used at home or
otherwise for such purpose).
3. Litigation Requiring Special Preservation
Litigation Requiring Special Preservation means any litigation in which the routine operation
of OAGs retention schedule may not be sufficient to preserve evidence relevant to the litigation.

The legal obligation of a party to preserve evidence is defined by New York and federal, common and statutory
law. See, e.g., Kronisch v. United States, 150 F.3d 112, 126-27 (2d Cir. 1998); Zubulake v. UBS Warburg LLC, 220
F.R.D. 212 (S.D.N.Y. 2003); Strong v. City of New York, 112 A.D.3d 15, 21-22 (1st Dept 2012); C.P.L.R. 3126;
Fed. R. Civ. Proc. 26 & 37. The appropriate application of this policy to particular circumstances should be assessed
in light of this case law.

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It includes: (i) specific and identifiable civil litigation against the OAG or against an OAG
employee and relating to his or her conduct as an employee; (ii) civil litigation brought by the
OAG on behalf of the People of the State of New York (i.e., affirmative litigation), if the conduct
of the OAG or OAG employees is the subject of a claim, defense, or document request in the
litigation; and (iii) civil litigation in which the OAG is defense counsel, if the conduct of the
OAG or of OAG employees is the subject of a document request in the litigation.
This Policy is addressed only to Litigations Requiring Special Preservation. In other cases, the
OAG will preserve evidence consistent with its legal obligations, which will be satisfied by the
normal operation of the OAGs retention schedule.
4. Litigation Hold
Litigation Hold is the process of identifying and preserving Potential Evidence when a
Litigation Requiring Special Preservation is pending or is reasonably anticipated.
5. Litigation Hold Notice
A Litigation Hold Notice is written notification to Affected Parties that Litigation Requiring
Special Preservation is pending or is reasonably anticipated, requiring the recipients to preserve
Potential Evidence in their possession or control.
6. Point of Contact
Each Litigation Hold Notice will designate a Point of Contact who will work with Counsels
office and relevant supervisors or executive staff to develop and implement that Litigation Hold.
The Point of Contact will be an attorney who is familiar and involved in the pending or
reasonably anticipated Litigation Requiring Special Preservation and has knowledge about other
employees who may possess Potential Evidence. There may be more than one Point of Contact.
7. Potential Evidence
Potential Evidence is any tangible item that is possessed or controlled by the OAG,2 in any
physical form whatsoever including ESI, reports, statements, examinations, memoranda,
opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps,
photos, letters, microfilms, computer tapes or discs, voicemails, that may reasonably be expected
to be requested in discovery, used in, or related to a specific and identifiable Litigation Requiring
Special Preservation. Therefore, Potential Evidence is usually limited to that which is relevant to
a reasonably anticipated claim or defense. The scope of Potential Evidence depends on the nature
of the specific litigation or anticipated litigation, including the time periods involved, the
allegations made by the parties, and the subject matter of the litigation.

Potential Evidence includes tangible items possessed or controlled by an OAG employee outside of the Office
(e.g., on personal computers or in files kept at home or on the cloud), if the tangible item was used for or reflects
government work. OAG employees are discouraged from maintaining work files at home or using personal
computers to do government work (except through the OAGs remote access program),

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III.

PROCEDURES
A. REPORTING INFORMATION RELATING TO A PENDING OR POTENTIAL
LITIGATION REQUIRING SPECIAL PRESERVATION

The determination of whether a Litigation Requiring Special Preservation is pending or

reasonably anticipated will depend on all of the facts and circumstances known to the OAG.
Accordingly, any employee with information that may be relevant to such a determination shall
immediately notify his/her Bureau Chief and Executive Deputy Attorney General (EDAG),
who will then assess the facts and circumstances and recommend to the Counsel to the Attorney
General whether a Litigation Requiring Special Preservation has been brought or may be
reasonably anticipated.
The following is a non-exhaustive list of events that an employee should report to the Bureau
Chief and EDAG as information that may be relevant to the OAGs determination of whether a
Litigation Requiring Special Preservation has been brought or is reasonably anticipated:
a) Receipt or anticipation of a document request or other discovery request regarding
the conduct of the OAG or of OAG employees;
b) Receipt or anticipation of a document preservation request or notice letter
regarding the conduct of the OAG or of OAG employees;
c) Receipt or anticipation of a subpoena seeking information regarding the conduct
of the OAG or of OAG employees;
d) A communication threatening litigation against OAG or OAG employees is
received from a known adversary or his/her lawyer(s);
e) Receipt of notice of an administrative claim or complaint naming OAG or OAG
employees;
f) A complaint is made against the OAG or OAG employees to an external or
internal investigatory agency or unit;
g) Similar past experience or circumstances resulted in known and significant
litigation regarding the conduct of the OAG or of OAG employees;
h) Events that occurred involving the OAG or OAG employees resulted in known
and significant injury; or,
i) A claimant has initiated formal dispute resolution procedures against the OAG or
an OAG employee.
B. DETERMINING WHETHER AND HOW TO IMPLEMENT A LITIGATION
HOLD NOTICE
Upon notice of an existing or potential Litigation Requiring Special Preservation (from an
employees report or otherwise), the relevant EDAG, with input from the relevant Bureau Chief
and AAGs, shall recommend to the Counsel to the Attorney General: (i) whether Litigation
Requiring Special Preservation has been initiated, or is reasonably anticipated; (ii) whether to
initiate a Litigation Hold; and (iii) the appropriate scope of any such Litigation Hold. In the case
of an existing or potential employment litigation against OAG, such recommendations shall be
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made by the OAGs Employment Counsel, with input from the Chief Operating Officer and
Director of Human Resources.
1. Whether Litigation Requiring Special Preservation Is Reasonably Anticipated
Upon receipt of the recommendations of the EDAG or Employment Counsel, Counsel to the
Attorney General, or a designee, will determine whether a Litigation Requiring Special
Preservation has been initiated or is reasonably anticipated.3 In making that determination, the
following factors may be pertinent:
a) The nature and specificity of the complaint or threat;
b) The party making the claim;
c) The relationship between the parties;
d) Whether the threat is direct, implied, or inferred;
e) Whether the party making the claim is known to be aggressive or litigious;
f) Whether a party who could assert a claim is aware of the claim;
g) The strength, scope, or value of a known or reasonably anticipated claim;
h) Reputable press coverage of the issue; and,
i) Prior experience of OAG.
These factors are not exhaustive. They and other considerations will be weighed reasonably and
in good faith based in the context of what steps are reasonable and practicable based on the facts
and circumstances as they are known at the time. Later facts or information may require Counsel
to reevaluate or amend such determination.
2. Whether to Implement a Litigation Hold and its Scope
Counsel to the Attorney General, or a designee, will also determine whether to implement a
Litigation Hold and its scope. In making those determinations, Counsel may consider the
following factors:
a) The nature of the issues raised in the matter, including reasonably anticipated
claims and defenses;

Although State and Federal case law include a variety of phrases to describe when the obligation to preserve is
triggered, the case law has been synthesized as providing that a reasonable anticipation of litigation exists when an
organization is on notice of a credible probability that it will become involved in litigation. The Sedona
Conference, The Sedona Conference Commentary on Legal Holds: The Trigger & The Process, 11 Sedona Conf.
J. 265, 269 (2010) [hereinafter, Sedona Commentary]; VOOM HD Holding LLC v. EchoStar Satellite LLC, 93
A.D.3d 33 (1st Dept 2012) (using credible probability formulation); see also Byrnie v. Town of Cromwell, 243
F.3d 93, 107 (2d Cir. 2001) (preservation obligation upon notice of the prospect of potential litigation); Fujitsu
Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001) (same); Kronisch v. United States, 150 F.3d 112, 126 (2d
Cir. 1998) (preservation obligation when a party should have known that the evidence may be relevant to future
litigation); Strong v. City of New York, 112 A.D.3d 15, 22 (1st Dept 2013) (preservation obligation when party was
on notice that [the evidence] might be needed for future litigation).

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b) Experience in similar circumstances, including whether similar circumstances
resulted in document productions;
c) The document retention that would occur absent any Litigation Hold; and,
d) The sources and locations of Potential Evidence.4
The Chief Information Officer will be consulted as appropriate on OAG technical capabilities
and other available technical solutions.
C. IMPLEMENTATION OF THE LITIGATION HOLD
Once a determination to implement a Litigation Hold has been made, the EDAG, Bureau Chief
and Point of Contact shall together, and in consultation with Counsel or Counsels designee,
determine the steps that will be taken to implement the Litigation Hold and prepare the materials
necessary to implement the Litigation Hold, including assignment of responsibilities for each
step. In the case of pending or reasonably anticipated employment litigation against OAG, such
determination shall be made by the Point of Contact, together with OAGs Employment Counsel,
and in consultation with Counsel to the Attorney General or Counsels designee.
The steps taken to implement a Litigation Hold consistent with the law will depend on the
circumstances, but may include:
a) Identifying Affected Parties who are reasonably expected to have Potential
Evidence;
b) Directing the Administrative Services Bureau and Information Technology &
Systems Management Bureau that the disposition of records under the OAG
Schedule and the OAG Email Retention Policy be suspended or modified for
Affected Parties to preserve Potential Evidence;
c) Issuing a Litigation Hold Notice to all Affected Parties. The Litigation Hold
Notice shall:
i) provide a basic description of the subject matter at issue;
ii) inform Affected Parties of their obligation to identify and immediately
preserve all existing and newly created Potential Evidence;5
iii) ask the recipient to confirm receipt;
iv) ask whether the recipient has Potential Evidence responsive to the Litigation
Hold Notice;
v) ask whether the recipient is aware of other OAG personnel (other than those
already identified as an Affected Party) who might have Potential Evidence;
and,

Sedona Commentary at 280-82 (describing and discussing the factors to be weighed in determining the scope of a
particular hold).

Depending on the circumstances, a Litigation Hold Notice may either (or both) require Affected Parties to search
their own ESI for Potential Evidence or/and rely on IT to search ESI for Potential Evidence.

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vi) ask whether the recipient has any questions regarding the Litigation Hold
Notice or needs clarification.
d) Following up with Affected Parties to confirm receipt and compliance with the
Litigation Hold Notice and to obtain answers to the various questions posed by
the Litigation Hold Notice;
e) Creating and implementing a plan for reviewing ongoing compliance with the
Litigation Hold Notice;
f) Identifying search parameters (such as by custodian, date range, geographic
location, file type, email suffix, or key word), to identify ESI containing Potential
Evidence for preservation. This process shall include collaboration with
(i) Information Technology and System Management staff to assess technological
capabilities, and (ii) employees knowledgeable about the pending or anticipated
litigation to ensure that search parameters are appropriate; and,
g) Identifying any unique obstacles to preservation and taking additional steps as
appropriate to address those challenges.
D. PERIODIC REVIEW AND MAINTENANCE OF LITIGATION HOLD NOTICES
The Point of Contact, Bureau Chief, EDAG and/or Employment Counsel have a continuing
obligation to report on the status of matters under Litigation Hold to the extent relevant to the
Litigation Hold procedures. For example, if new employees are assigned to the matter on
Litigation Hold, additional notices to Affected Staff must be generated.
Once a Litigation Hold Notice has been issued, the Counsel to the Attorney General (or a
designee) shall, at least biannually, review existing Litigation Hold Notices to determine the
need to maintain the Litigation Hold and/or to take additional actions.
E. REMOVAL OF LITIGATION HOLD
Counsel to the Attorney General shall determine when a Litigation Hold Notice may be lifted
and Potential Evidence no longer preserved because litigation is no longer pending or reasonably
anticipated or foreseen, or the Litigation Hold otherwise is no longer necessary. Counsel to the
Attorney General shall communicate in writing to Affected Parties when he or she determines
that a Litigation Hold Notice may be lifted and Potential Evidence no longer preserved. Absent
other litigation holds, the lifting of a Litigation Hold Notice shall revive normal document
retention policies, including the Email Management Policy.
F. DEPARTING EMPLOYEES
All departing employees in receipt of a Litigation Hold Notice shall inform (i) the Point of
Contact, and (ii) the employees supervisors (including Bureau Chief and EDAG) about any
impending departure from the OAG so that the OAG can arrange for preservation of Potential
Evidence, including ESI. Potential Evidence in the form of ESI shall be maintained by the
Information Technology & Systems Management Bureau. The employees direct supervisor
shall take responsibility of all other Potential Evidence under the control of the separated
employee until further notice by the Counsel to the Attorney General or the Point of Contact.

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IV.

RELATION TO OTHER POLICIES

A. OAG EMAIL RETENTION POLICY

Absent a Litigation Hold, the OAG Email Retention Policy provides that emails sent or received
by OAG accounts will be deleted from email servers after 90 days. A Litigation Hold issued
pursuant to this policy will suspend or modify the automatic operation of the OAG Email
Retention Policy to preserve emails of Affected Parties that are Potential Evidence.
B. OAG RECORD RETENTION AND DISPOSITION SCHEDULE
Absent a Litigation Hold, the OAG Record Retention and Disposition Schedule (the OAG
Retention Schedule)6 and the General Retention and Disposition Schedule for New York State
Government Records (the General Retention Schedule)7 provide legal authorization to dispose
of covered records (as defined by 8 N.Y.C.R.R. 188.2(h)) on a regularly scheduled basis after
minimum retention periods have been met. See Arts & Cultural Affairs Law 57.05(11), 8
N.Y.C.R.R. Part 188.8 A Litigation Hold issued pursuant to this policy supersedes any provision
of the OAG Retention Schedule, the General Retention Schedule, or State law that would
otherwise authorize the destruction, deletion, or disposal of Potential Evidence while litigation is
pending or reasonably anticipated.
C. FREEDOM OF INFORMATION LAW (FOIL) REQUESTS
This policy sets forth the procedure for preserving Potential Evidence in a pending or reasonably
anticipated Litigation Requiring Special Preservation. A routine FOIL request does not require
preservation of Potential Evidence pursuant to this policy. FOIL preservation is governed by
OAGs procedures for the handling of FOIL requests. Nothing in this policy modifies the
policies and procedures for the handling of FOIL requests.
IV.

CONCLUSION

The consequences of failing to preserve evidence may be significant. It is important that OAG is
prepared to preserve ESI and other evidence from the outset of a case, to avoid costly data
recovery processes, the possibility of court-imposed sanctions, or adverse inferences. In addition,
violations of this policy and procedures may be subject to disciplinary action up to and including
dismissal.
If you have questions regarding Potential Evidence preservation, please contact the Counsels
Office.

Available at http://www.oag.silvernet/facilities/pdfs/Records_Retention_Disposition_Schedule.pdf.

Available at http://www.oag.lawnet/policies/GenSchedule.pdf.

Please email Records@ag.ny.gov if you have any questions relating to your obligation to retain records in the
absence of a Litigation Hold.

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