Upon service of the complaint, the agency shall confirm that an appropriate litigation hold was implemented or, only after consultation with DOJ, make a determination that the specific case does not require a litigation hold. It is the responsibility of agency counsel, in consultation with DOJ, to (1) provide written notice to all agency employees (and contractors, if necessary) who are likely to have documents or electronically stored information (ESI) relevant to any potential claim or defense of their obligation to preserve such documents and information, (2) obtain certification from every such employee (or contractor) that he or she understands these obligations and will comply, and (3) coordinate with the agency’s information technology personnel in instituting and maintaining the litigation hold.

As the litigation proceeds, the agency shall memorialize the efforts undertaken to preserve documents and ESI in native format along with metadata and to suspend all routine destruction of relevant documents and data. Close and frequent coordination between DOJ and agency counsel is necessary to ensure proper identification, preservation, search, collection, and production of relevant data. An agency may be called upon to make certifications to the court regarding its continuing efforts in this regard.

The agency shall prepare a draft answer that responds to the complaint’s paragraph-by- paragraph allegations and that includes any recommended defenses and affirmative relief to be requested. The draft answer should be transmitted to DOJ in a manner that allows the assigned Assistant United States Attorney or Trial Attorney sufficient time to incorporate the agency draft into a final document for timely filing with the court.

The agency shall provide a timely litigation report that, in addition to the draft answer, provides details of the events alleged in the complaint and identifies any relevant statutes, regulations, or agency policies or procedures that might affect the course of litigation. Unless DOJ indicates otherwise, the litigation report should include all the information necessary for the "initial disclosures" required by Fed. R. Civ. P. 26(a). Rule 26(a)requires that without waiting for a discovery request, the parties exchange lists of "each individual likely to have discoverable information" (whether or not an agency employee) and identify documents relevant to the claims or defenses raised in the complaint and in the answer, and that a party may use to support its claims or defenses. When requested by DOJ, agency counsel will provide copies of the documents identified in the initial disclosures. Copies of any litigation reports should also be furnished to any USAO or DOJ Civil Division component that requests them.

[updated April 2018]