Department of Health and Human Services Policy for Litigation Holds

Document #: HHS-OCIO-CDO-2023-08-004
Version #: 2.0
Last Reviewed: 08/2023
Next Review: 08/2026
Owner: OCIO/CDO
Approved By: Karl S. Mathias, Ph.D., Chief Information Officer (CIO)

Table of Contents

1. Nature of Changes
2. Purpose
3. Background
4. Scope
5. Authorities
6. Policy
   • 6.1 Establishing Standard Operating Procedures (SOP)
7. Roles and Responsibilities
   • 7.1 HHS Secretary
   • 7.2 HHS Assistant Secretary for Administration (ASA)
   • 7.3 OpDiv Heads
   • 7.4 HHS Chief Information Officer (CIO)
   • 7.5 Agency Records Management Officer (ARO)
   • 7.6 OpDiv Chief Information Officers (CIOs)
   • 7.7 OpDiv Records Officers (ROs)
   • 7.8 OpDiv Records Managers (RMs) and Records Liaisons (RLs)
   • 7.9 Managers and Supervisors
   • 7.10 Contracting Officers (COs) and Contracting Officer Representatives (CORs)
   • 7.11 HHS Employees, Contractors, Interns, and Fellows
   • 7.12 HHS Office of the General Counsel (OGC)
8. Information and Assistance
9. Effective Date and Implementation
10. Approval

Appendix A: Procedures

Appendix B: Standards

Appendix C: Guidance

Appendix D: Forms and Templates

Glossary and Acronyms

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1. Nature of Changes

This U.S. Department of Health and Human Services (HHS) Policy for Litigation Holds (hereinafter “Policy”) updates and supersedes the previous version (dated November 29, 2016).  The Policy was updated to align with revised HHS litigation hold practices and the National Archives and Records Administration (NARA) guidance. 

2. Purpose

The purpose of this Policy is to establish that HHS takes all reasonable steps to preserve potentially relevant information in the possession, custody, or control of HHS when civil litigation has commenced or when there is reasonable anticipation of litigation.  This Policy does not address records retention under the Federal Records Act or the Freedom of Information Act (FOIA) or preservation obligations imposed by other laws.

Failure to preserve information in accordance with applicable law could adversely affect the legal or financial interests of HHS, the United States Government, or persons directly affected by HHS activities and could subject individual staff and the Department to sanctions and penalties (36 C.F.R, Chapter XII, Subchapter B, §§ 1230.1 – 1230.18, Fed. R. Civ. Pro. 37(e)).  Non-compliance with this Policy, a relevant standard operating procedure (SOP) which follows this policy, or a litigation hold may also result in adverse personnel action.

3. Background

When the Department has reasonable anticipation of litigation or litigation has commenced, the Department has a duty to take reasonable steps to preserve information relevant to any party’s claims or defenses at issue and proportional to the needs of the case.  (Fed. R. Civ. Pro. 26(b)(1), 37(e)).  A “litigation hold” is a notification to employees and covered recipients to retain information in the agency’s possession, custody, or control relevant to those claims or defenses.  Under a litigation hold, relevant information, regardless of format or physical location, must be retained (in original format, if practicable) and not altered, destroyed, or otherwise disposed of for as long as the litigation hold is in effect.  Litigation holds prevent the spoliation (e.g., improper destruction, alteration, or mutilation) of evidence.  Determination of what information is relevant is based upon content and substance and generally does not depend on the type of medium on which the information exists or the physical location of the information. 

4. Scope

Except as expressly excluded, this Policy applies to all Department Operating Divisions including the Office of the Secretary (hereinafter referred to collectively as OpDivs), as well as individuals and organizations conducting business for and on behalf of the Department through a relationship under which HHS’s documents and data are under the contracting organizations or individual’s possession, custody or control.¹ This Policy does not apply to the Office of Inspector General (OIG).  In addition, this Policy does not apply to cases in which judicial review is limited to a defined record and cases in which the Office of the General Counsel (OGC), in consultation with DOJ as appropriate, reasonably believes that HHS has no potential relevant Electronically Stored Information (ESI), documents or tangible things in its possession, custody, or control.  Each OpDiv subject to this Policy must adopt and implement this Policy, or may create a more restrictive policy, but not one that is less restrictive or less comprehensive than this Policy.

This Policy does not supersede any applicable law or higher-level agency directive, nor does it supersede any existing labor management agreement in effect as of the effective date of this Policy.

This Policy also applies to HHS employees, covered recipients, and other non-government personnel supporting HHS.  All organizations collecting, maintaining information, using or operating information systems on behalf of the Department are also subject to the requirements of this Policy.  Compliance with this Policy must be incorporated into applicable contract, grant, or memoranda of agreement language under a separate cover, as appropriate.  

5. Authorities

Authorities include:

1. Agency Records Management Responsibilities, 36 C.F.R., Chapter XII, Subchapter B, §§ 1220.30 – 1220.34.
2. Unlawful or Accidental Removal, Defacing, Alteration, or Destruction of Records, 36 C.F.R., Chapter XII, Subchapter B, §§ 1230.1 – 1230.18.
3. Electronic Records Management, 36 C.F.R., Chapter XII, Subchapter B, §§ 1236.2 – 1236.36.
4. Public Money, Property or Records, 18 U.S.C. § 641.
5. Concealment, Removal, or Mutilation Generally, 18 U.S.C. § 2071.
6. National Archives and Records Administration, 44 U.S.C. §§ 2101 – 2120.
7. Records Management by the Archivist of the United States and by the Administrator of General Services, 44 U.S.C. §§ 2901 – 2912. 
8. Records Management by Federal Agencies, 44 U.S.C. §§ 3101 – 3107.  
9. Disposal of Records, 44 U.S.C. §§ 3301 – 3314.
10. Coordination of Federal Information Policy (Paperwork Reduction Act of 1980, as amended, Paperwork Reduction Reauthorization Act of 1995, and Government Paperwork Elimination Act), 44 U.S.C. §§ 3501 – 3583.
11. The Privacy Act of 1974, 5 U.S.C. § 552a.
12. Duty to Disclose; General Provisions Governing Discovery, Federal Rules of Civil Procedures, Rule 26.
13. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes, Federal Rules of Civil Procedures, Rule 34.
14. Failure to Make Disclosures or to Cooperate in Discovery; Sanctions, Federal Rules of Civil Procedures, Rule 37.
15. Delivering Government Solutions in the 21st Century – Executive Office of the President, Reform Plan and Reorganization Recommendations.
16. National Archives and Records Administration (NARA) Bulletin 2010-05: Guidance on Managing Records in Cloud Computing Environments.
17. NARA Bulletin 2014-02: Guidance on Managing Social Media Records.  
18. NARA Bulletin 2015-02: Guidance on Managing Electronic Messages.
19. NARA Criteria for Successfully Managing Permanent Electronic Records.
20. NARA Guidance on Records Management Language for Contracts.
21. Office of Management and Budget (OMB) Circular A-130, Managing Federal Information as a Strategic Resource.
22. OMB/NARA Directive M-23-07, Update to Transition to Electronic Records.
23. “Public Law 113-187: Presidential and Federal Records Act Amendments of 2014”, (128 Stat. 2003, Date: 11/26/2014).
24. Universal Electronic Records Management Requirements.
25. NARA General Records Schedules.
26. HHS Agency Records Control Schedules.
27. General Record Schedule 6.1:  Email and Other Electronic Messages Managed under a Capstone Approach.
28. HHS Policy for Implementing Electronic Mail (Email) Records Management.
29. HHS Policy for Rules of Behavior for Use of Information and IT Resources.
30. HHS Policy for Mobile Devices and Removable Media.

6. Policy

6.1. Establishing Standard Operating Procedures (SOP)

Each HHS component including the Office of the Secretary, in consultation with OCIO Divisions (the HHS Records Management Program and the Office of Operations) and OGC, will promulgate a written SOP for litigation holds applicable to its staff and covered recipients.  Each HHS component may authorize subcomponents to issue their own SOPs, which may not be less stringent than the OpDiv SOP.  In such cases, the subcomponent’s SOP controls the litigation hold process within the subcomponent.  Exceptions to this litigation hold policy are permissible only when made in consultation with the OCIO and OGC.  Provisions of each OpDiv SOP must include, at a minimum:

1. Guidance to managers, supervisors, employees, and covered recipients about their responsibilities with respect to litigation holds, including any administrative delegations by the OpDiv Head to other officials to perform responsibilities described in this policy.
2. Instructions that before informing a covered recipient of any litigation hold notice with a scope that may include contractor or recipient records, the HHS staff member responsible for issuing the litigation hold confer with the cognizant contracting officer or grants management official, who is to consult OGC for legal advice about issuing the litigation hold to the covered recipient.
3. A process for employees and covered recipients to notify designated HHS officials as soon as they become aware of information that suggests a credible probability of litigation or circumstances that might lead to a conclusion that litigation is reasonably anticipated.
4. A process to identify potential litigation hold custodians.
5. A process to incorporate the preservation obligations of this policy into contracts, federal assistance awards, other agreements, and relevant policy issuances.
6. Programmatic and technical (IT) points of contact for the OpDiv.
7. Guidance on preparing and issuing litigation hold notices, including instructions that each notice must include:
   1. A description of the matter for which the litigation hold is being issued. 
   2. A description of the documents, ESI, and/or tangible things to be preserved.
      1. Types of information that should be preserved include all documents (hard copy and electronic), records, data, correspondence (including, but not limited to, emails and other electronic communications), notes, and other materials (hard copy and electronic), whether official or unofficial, original or duplicative, drafts or final versions, partial or complete versions.  When practicable, ESI should be preserved in its native format and should include the preservation of any metadata.  When a litigation hold is issued, normal disposition schedules applying to records and ESI are suspended until employees and other covered recipients are notified the litigation hold has been terminated.
      2. Locations of HHS documents, ESI, and tangible things may include, but not necessarily be limited to:
         1. Information technology sources where ESI may be stored, such as government issued or personal property computers and laptops used to conduct government work, network or hard drives of office desktop computers, office and field laptop computers, portable storage media (e.g., flash drives, compact discs, memory sticks, any handheld cell phones, smartphones, or personal digital assistants), and other data storage locations (e.g., Box. SharePoint, Amazon Warehouse Storage, etc.);
         2. Paper, electronic or other media files in HHS employee offices and storage spaces;
         3. Off-site facilities, such as Federal Records Centers (FRC) and commercial storage;
         4. The information technology sources, offices, storage spaces and facilities of covered recipients.
   3. Guidance on how to comply with the litigation hold expressly stating that a litigation hold creates an obligation to preserve information and including instructions to suspend any destruction or deletion of the information until the litigation hold has been lifted;
   4. A method of confirming receipt of, and agreement to comply with, the litigation hold; and
   5. Points of contact for programmatic or legal questions or technical assistance.
8. Measures to track the status of litigation holds applicable to the OpDiv, names and positions of all litigation hold custodians, and confirmations of receipt and agreements to comply with litigation holds.
9. A process for preservation of potentially relevant documents, ESI, and tangible things of custodians who are leaving current positions or otherwise changing relationships with the OpDivs, including consultation with managers and supervisors, and IT Service Centers.
10. A process for promoting continuous compliance, including mechanisms to revise the scope of a litigation hold and to issue reminders regarding preservation obligations under an existing litigation hold.3
11. A process to timely document and notify OGC of any destruction, loss, or alteration of potentially relevant documents, ESI, or tangible items or the discovery of potentially relevant documents, ESI, or tangible items not previously identified and reported or newly identified custodians.
12. A process for communication with FRCs when notified of a litigation hold or lift (when applicable).
13. A process to disseminate notice of a litigation hold lift.

7. Roles and Responsibilities

7.1 HHS Secretary

The responsibilities of the HHS Secretary include, but are not limited to, the following:

1. Notifying the Archivist of the United States of any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency that are subject to a litigation hold.

7.2 HHS Assistant Secretary for Administration (ASA)

The responsibilities of the HHS Assistant Secretary for Administration (ASA) who also serves as the Senior Agency Official for Records Management (SAORM) include, but are not limited to, the following:

1. Periodically reviewing the HHS Policy for Litigation Holds in consultation with OGC.

7.3 OpDiv Heads

The responsibilities of the OpDiv Heads include, but are not limited to, the following:

1. Leading efforts to develop, implement and maintain SOPs within their OpDiv as described in this policy.
2. Ensuring each litigation hold and related communications are sent to all employees and covered recipients within their respective OpDiv who may hold information subject to the litigation hold in their possession, custody, or control.

7.4 HHS Chief Information Officer (CIO)

The HHS Chief Information Officer (CIO) provides oversight of the Department-wide records management program.  The responsibilities of the HHS CIO include, but are not limited to, the following:

1. Leading efforts, in consultation with OGC, to ensure the Department’s compliance with this Policy and HHS procedures and instructions concerning litigation holds.
2. Leading efforts to ensure HHS IT systems have safeguards to prevent the destruction of information subject to litigation holds.

7.5 HHS Agency Records Officer (ARO)

The HHS ARO is responsible for the implementation of the Department-wide records management program.  The responsibilities of the HHS ARO include, but are not limited to, the following:

1. Serving as the Department’s representative with NARA, other federal agencies, and external organizations on matters pertaining to records management.
2. Providing leadership and guidance to ensure uniformity in records management activities throughout the Department that support this Policy.
3. Developing policies, standards, and procedures for records management as necessary to support this Policy.
4. Ensuring all HHS employees including senior officials and covered recipients are aware of their programmatic and individual responsibilities with respect to this Policy.
5. Providing guidance and operational support, in consultation with OGC, for the implementation of litigation holds.

7.6 OpDiv Chief Information Officers (CIOs)

The responsibilities of the OpDiv Chief Information Officers (CIOs) or OpDiv designated authority include, but are not limited to, the following:

1. Supporting efforts, in coordination with OpDiv Heads, to ensure the OpDiv’s compliance with this Policy, the OpDiv’s SOP on litigation holds and HHS and OpDiv procedures and instructions concerning litigation holds.
2. Leading efforts to ensure OpDiv IT systems have safeguards to prevent the destruction of information subject to litigation holds.
3. Leading efforts to ensure each OpDiv IT Service Center preserves ESI of all litigation hold custodians including those departing HHS, while the litigation hold is in place.
4. Leading efforts to establish secure methods to electronically transfer responsive data to OGC if required.

7.7 OpDiv Records Officers (ROs)

The responsibilities of the OpDiv Records Officers (ROs) or OpDiv designated Litigation Hold Point of Contact include, but are not limited to, the following:

1. Ensuring coordination and compliance with agency-wide records management and litigation hold requirements.
2. Developing, in consultation with OGC, the OpDiv’s SOPs for litigation holds.
3. Ensuring all OpDiv employees including senior officials and covered recipients are aware of their programmatic and individual responsibilities regarding litigation holds.
4. Providing guidance and operational support, in consultation with OGC and the ARO, for the implementation of litigation holds.
5. Ensuring all received issuance and termination of litigation holds including related communications directed by OGC are reported to the ARO.  Information reported to the ARO must include: name of litigation hold, date the litigation hold was initiated, date(s) litigation hold reminders or supplements are sent, and date the litigation hold is lifted.
6. Distributing litigation hold memos and all attachments, as applicable, provided by OGC per the OpDiv’s internal litigation hold SOPs.  This process includes all materials provided for reminders, litigation hold supplements, and litigation hold lift notifications.
7. Maintaining a system, in consultation with OGC, to track litigation holds, including a list of identified litigation hold custodians, initial preservation instructions, certifications of implementation, reminders and supplements (if applicable), and litigation hold lift notifications.
8. Following up with OpDiv records management point(s) of contact to ensure timeliness documenting implementation of litigation holds.  This includes completing certification forms supplied by OGC for litigation holds (applicable to OS and multi-agency litigation holds only).

7.8 OpDiv Records Managers (RMs) and Records Liaisons (RLs)

The responsibilities of the OpDiv Records Managers (RMs) and Record Liaisons (RLs) include, but are not limited to, the following:

1. Supporting their OpDiv RO by taking reasonable steps to make sure employees and covered recipients are in compliance with litigation hold instructions, this Policy, and the OpDiv’s SOPs.

7.9 Managers and Supervisors

The responsibilities of Managers and Supervisors include, but are not limited to, the following:

1. Ensuring each litigation hold is sent to employees and covered recipients believed to have documents, ESI, and tangible things in their possession, custody, or control that are subject to the litigation hold.
2. Ensuring that potentially responsive ESI, including e-mails, of departing individuals is preserved and not deleted.     

7.10 Contracting Officers (COs) and Contracting Officer Representatives (CORs)

The responsibilities of Contracting Officers (COs) and Contracting Officer Representatives (CORs) include, but are not limited to, the following:

1. Ensuring contractors are aware of HHS records management policies with respect to litigation holds.
2. Ensuring that potentially responsive documents, ESI, or tangible items in possession of departing contractors are preserved and not deleted.

7.11 HHS Employees, Contractors, Interns, and Fellows

The responsibilities of all HHS employees, contractors, interns, and fellows include, but are not limited to, the following:

1. Complying with this Policy, relevant SOPs, and litigation holds.
2. Taking affirmative steps to prevent the destruction of any responsive HHS documents, ESI, or tangible things in the individual's possession, custody, or control.
3. Maintaining litigation hold communications confidential.  Employees shall not share information with any outside individual or organization, including any grantee, nonprofit, advocacy group, lawyer or law firm, provider, or supplier, about any litigation hold communications.
4. Following litigation records management procedures when transferring or leaving the Department.

7.12 HHS Office of the General Counsel (OGC)

The responsibilities of the HHS Office of the General Counsel (OGC) include, but are not limited to, the following:

1. Coordinating issuance and termination of litigation holds including related communications with the appropriate OpDiv Records Officers (ROs) or OpDiv designated Litigation Hold Point of Contact.
2. Advising the HHS Records Management Program on development of training materials on litigation hold processes and assisting the HHS Records Management Program in conducting periodic training for HHS Litigation Hold POCs.

8. Information and Assistance

The Office of the HHS Chief Data Officer (OCDO) is responsible for the development and management of this Policy.  Questions, comments, suggestions, and requests for information about this Policy should be directed to the HHS Records Management Program at HHSRecordsManagement@hhs.gov.

9. Effective Date and Implementation

The effective date of this Policy is the date on which the Policy is approved.  This Policy must be reviewed, at a minimum, every three (3) years from the approval date. 

The HHS CIO has the authority to grant a one (1) year extension of the period between reviews of this Policy. 

To archive this Policy, approval must be granted, in writing, by the HHS CIO.

10. Approval

/S/

Karl S. Mathias, Ph.D., Chief Information Officer (CIO)  
August 10, 2023

Appendix A: Procedures

Please note that this appendix is subject to change at any time. The current version of this Policy will always reside in the OCIO Policy Library.

No additional procedures are required to implement this policy.

Appendix B: Standards

Please note that this appendix is subject to change at any time. The current version of this Policy will always reside in the OCIO Policy Library.

No additional standards are required to implement this policy.

Appendix C: Guidance

Please note that this appendix is subject to change at any time. The current version of this Policy will always reside in the OCIO Policy Library.

Additional guidance and suggestions for preparing an OpDiv SOP, as applicable:

1. Define roles and responsibilities for OpDiv Records Officers (ROs) and Litigation Hold POCs:
   1. Reviewing and forwarding the names of identified litigation hold custodians within their respective OpDivs to OGC.
   2. Reviewing and forwarding the completed and signed HHS Certification & Information Forms provided by their respective OpDivs to the ARO and OGC.  This includes certification forms supplied by OGC for litigation hold supplements (applicable to OS and multi-agency litigation holds only).
   3. Providing up-to-date litigation hold custodian information to OGC when made aware of a custodian's upcoming departure or transfer within HHS.
   4. Coordinating with OpDiv OCIO IT Service Center to implement electronic preservation of ESI of identified litigation hold custodians.
   5. Coordinating with the Federal Records Centers (FRC) to implement freeze on records of identified litigation hold custodians that are in the custody or control of the FRCs.
   6. Coordinating with OpDiv OCIO IT Service Center and the FRC (if applicable) to end the preservation obligations associated with lifted litigation holds and to return documents to routine disposition schedules, except where other retention obligations are applicable.
2. Define roles and responsibilities for OpDiv and StaffDiv Records Managers (RMs) and Records Liaisons (RLs):
   1. Reviewing and forwarding the names of identified litigation hold custodians within their respective components to the OpDiv RO or Litigation Hold POC.
   2. Reviewing and forwarding the completed and signed HHS Certification & Information Forms provided by their respective components to the OpDiv RO or Litigation Hold POC (applicable to OS and multi-agency litigation holds only).
   3. Coordinating with their OpDiv OCIO IT Service Center to implement electronic preservation of ESI of identified litigation hold custodians.
   4. Coordinating with OpDiv OCIO IT Service Center to end the preservation obligations associated with lifted litigation holds and to return documents to routine disposition, except where other retention obligations are applicable.
3. Define roles and responsibilities for Managers and Supervisors:
   1. Providing the names of identified litigation hold custodians within their respective program office to their OpDiv RM or Litigation Hold POC and to the OpDiv OCIO IT Service Center (applicable to OS only).
   2. When notified that an employee, contractor, intern, or fellow is transferring or leaving the Department, assess whether the departing individual is a document custodian for a litigation hold and if so, share the name of the departing individual with OGC, the OpDiv Records Officer or Litigation Hold POC, and the OpDiv OCIO IT Service Center. 
4. Define roles and responsibilities for Contracting Officers (COs) and Contracting Officer Representatives (CORs):
   1. Providing the names of identified litigation hold custodians within their respective program office to their OpDiv RM or Litigation Hold POC and to the OpDiv OCIO IT Service Center (applicable to OS only).
   2. When notified that a contractor is transferring or leaving the Department, assessing whether the departing contractor is in possession of documents, ESI or tangible items subject to a litigation hold and if so, sharing the name of the departing contractor with OGC, the OpDiv Records Officer or Litigation Hold POC, and the OpDiv OCIO IT Service Center.
5. Define roles and responsibilities for HHS employees, contractors, interns, and fellows:
   1. Coordinating with office records staff and taking affirmative steps to prevent the destruction of any responsive HHS documents, ESI, or tangible things in the individual's possession, custody, or control.
   2. Consulting with the individual's supervisor, COR (if applicable), and office records staff and following litigation records management procedures when transferring or leaving the Department.
6. Define roles and responsibilities for the HHS Office of the General Counsel (OGC), for OGC use only:
   1. Determining when litigation holds, reminders and supplements (if applicable), and litigation hold lift notifications will be issued and to which HHS components should apply; and initiating the Litigation Hold process when a litigation hold is applicable to multiple OpDivs including Office of the Secretary.
   2. Maintaining the list of Litigation Hold Points of Contact (POC) for each OpDiv and StaffDiv, in consultation with the HHS Records Management Program, which includes (a) head of Component or designee, (b) OGC litigation hold POC, (c) Records Manager/Officer, and (d) additional recipients of litigation holds for component (if any).
   3. Maintaining the repository of templates for initiating litigation hold processes and coordinates to make the templates available to relevant HHS OGC coordinators (applicable to OS and multi-agency litigation holds only).
   4. Using established templates and OGC Litigation Hold POC list to draft a litigation hold consisting of (a) HHS cover email, (b) HHS Litigation Hold Memo (“HHS Memo”), (c) HHS Certification & Information Form, and (d) Potential HHS Custodian List (if applicable); and sending draft materials to the OGC-IO Control Desk at ControlDesk.OGCIO@hhs.gov.  This process includes reminders, litigation hold supplements, and litigation hold lift notifications.  (Applicable to OS and multi-agency litigation holds only.)
   5. Distributing approved litigation holds, in coordination with the OGC-IO Control Desk, to all HHS Component Litigation Hold POCs identified in the HHS memo and the ARO (and the OS Records Officer, if applicable).  This process includes reminders, litigation hold supplements, and litigation hold lift notifications.  (Applicable to OS and multi-agency litigation holds only.)

Appendix D: Forms and Templates

Please note that this appendix is subject to change at any time. The current version of this Policy will always reside in the OCIO Policy Library.

No additional forms or templates are required to implement this policy.   

Glossary and Acronyms

Definitions:

• Covered Recipient - A “covered recipient” is an individual or entity recipient of federal financial assistance under contract with HHS to carry out an HHS program activity who, or that, has possession, custody, or control of documents, ESI, or tangible things that are subject to an HHS litigation hold.  This term does not include contractors of recipients.  The term “covered recipient” is used only for the purposes of this policy and is not intended to carry the same meaning as such term may have in other laws or HHS regulations.
• Custodian – A “custodian” is an individual having possession, custody, or control of documents, electronically stored information, or tangible things subject to a litigation hold.
• Documents - “Documents” include, but are not limited to, written material, in final or draft form, such as memoranda, reports, printed e-mails, maps, diagrams, correspondence, spreadsheets, presentation materials, or notes.  This includes potentially relevant official or unofficial documents, all drafts, partial versions of documents, and duplicates.
• Electronic Messages – “Electronic messages” means electronic mail and other electronic messaging systems (text messaging, instant messaging, chat, voicemail messaging, social media or mobile device applications) that are used for the purposes of communicating between individuals.
• Electronically Stored Information (ESI) - In the context of litigation, means any documents or information that are stored in electronic form.
• Litigation – “Litigation” includes legal actions pending in federal court in which the United States, HHS, an HHS OpDiv or OpDiv component, or an HHS employee in an official capacity is a named party to the action and the Department’s ESI, documents, or tangible things may be subject to discovery under the Federal Rules of Civil Procedure.       “Litigation” does not include cases brought under the False Claims Act in which the United States either has declined to intervene or has filed a notice of no decision.
• Litigation Hold - A “litigation hold” is a notification to employees and covered recipients to retain potentially relevant information in the agency’s possession, custody, or control.
• Reasonable Anticipation of Litigation - A “reasonable anticipation of litigation” means there is a credible probability that HHS, an OpDiv or an OpDiv component, or an employee in their official capacity will be party to litigation based on a good faith and reasonable evaluation of relevant facts and circumstances known to OGC at the time of its analysis.  The analysis of whether there is a reasonable anticipation of litigation is fact specific.  Some situations are clear—for example, serving or receiving a complaint filed in court, versus vague threats or rumors.  Although it is important to realize that a check list approach is not appropriate in evaluating whether litigation is reasonably anticipated, relevant factors could include the specificity and clarity of a claim or a potential claim or threat of litigation, media coverage of the issue, and the existence of serious injuries or fatalities. 
• Tangible Things - “Tangible things” include, but are not limited to, equipment, laboratory samples, specimens, photographs, models, removable computer storage media (e.g., hard drives, CD-ROMs, DVDs, tapes, disks, thumb drives, cards), and other physical objects.

Additional definitions can be found on the NARA Records Management Key Terms and Acronyms webpage.

Acronyms:

• ARO – Agency Records Officer
• ASA – Assistant Secretary for Administration
• CDO – Chief Data Officer
• C.F.R. – Code of Federal Regulations
• CIO – Chief Information Officer
• CO – Contracting Officer
• COR – Contracting Officer Representative
• ESI – Electronically Stored Information
• FRC – Federal Records Center
• GSA – General Services Administration
• IT – Information Technology
• NARA – National Archives and Records Administration
• OCIO – Office of the Chief Information Officer
• OGC – Office of the General Counsel
• OIG – Office of Inspector General
• OMB – Office of Management and Budget
• OpDiv – Operating Division
• OPM – Office of Personnel Management
• RC – Records Custodian
• RL – Records Liaison
• RM – Records Manager
• RO – Records Officer
• SAORM – Senior Agency Official for Records Management
• SOP – Standard Operating Procedures
• StaffDiv – Staff Division
• U.S.C. – United States Code