Litigation Hold Obligations

30.60 - Litigation Hold Obligations (Rev. 13718; Issued: 04-10-26; Effective: 05-11-26; Implementation: 09-14-26) A litigation hold is a notification to recipients to retain information in the agency's possession, custody, or control relevant to those claims or defenses. When CMS reasonably anticipates litigation or litigation has commenced, CMS has a duty to take reasonable steps to preserve information relevant to any party's claims or defenses at issue in a manner that is proportional to the needs of the case. In accordance with (Fed. R. Civ. Pro. 26(b)(1), 37(e)), contractors shall personally take appropriate steps to preserve any responsive information that is in their possession, custody, or control. Accordingly, until notified otherwise, contractors shall preserve, and refrain from discarding, any and all responsive information related to a litigation hold. Steps shall be taken to suspend routine document retention, destruction policies and practices, including, but not limited to, those in the records schedule. Contractors must maintain strict confidentiality of litigation hold communications and may not share litigation hold information with external parties, including grantees, nonprofits, advocacy groups, legal representatives, providers, or suppliers. Preservation shall occur even if the information sought may ultimately be withheld as privileged, protected, classified, or confidential, or determined to be unreasonably burdensome to produce. If information subject to a litigation hold is destroyed, a court may impose sanctions, including the exclusion of evidence, the dismissal of a claim, the production of privileged information, and/or award costs and attorney fees against the government. When transferring responsibilities or ending CMS relationships, contractors must consult with the Contracting Officer's Representative (COR) and follow established litigation records management procedures to ensure continuity of litigation hold compliance and proper transfer of preserved documents. Documents include all forms of written material, whether in final or draft form, original or duplicates, complete or partial, official or unofficial. Examples include memoranda, reports, printed emails, maps, diagrams, correspondence, spreadsheets, presentation materials, and notes (including handwritten notes). Hardcopy documents shall be preserved even if they are duplicative of electronically stored information. The types of information related to the categories that shall be preserved include the following: A. Electronically Stored Information (ESI): Information that is stored electronically, regardless of the type of media, as opposed to information that is stored in hard copy (i.e., on paper). ESI includes, but is not limited to, word processing files, e-mail messages, archived e-mails, metadata, text messages, other electronic communication including voicemail, telephone log entries, databases, scanned/static images (PDFs or TIFFs), Internet usage files, systems manuals, network access information, drafts, spreadsheets, data, PowerPoint presentations, calendar entries, address books, digital photographs or other digital images, audio recordings, floppy discs, CDs, DVDs, and flash memory media, including USB drives and memory cards for cameras and cell phones. ESI should be preserved in its originally created or native format. This information includes not only content stored on HHS computers, but can also include information stored on home computers, personal laptop computers, personal e-mail accounts, and PDAs or mobile phones such as Blackberries, iPhones, and Androids, if used for work. ESI shall be preserved even if it is duplicative of hardcopy documents. B. Metadata: Data typically stored electronically that describe characteristics of ESI, such as how ESI is formatted, or how, when or by whom ESI is collected, created, accessed, or modified. Metadata can be supplied by applications, users, or the file system. C. Tangible Things: Tangible things are items that are likely to have discoverable information such as equipment, laboratory samples, specimens, and photographs.