Deepwater Horizon Disaster Louisiana Agency “Litigation Hold” AND Public Records Information

1. Deepwater Horizon DisasterLouisiana Agency “Litigation Hold” AND Public Records Information • WHAT WE MUST DO

2. Before April 20, 2010

3. After April 20, 2010

4. The Initial Imperative • All books, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are "public records", except as otherwise provided in this Chapter or the Constitution of Louisiana.

5. Important Background Considerations Regarding Public Records • Litigation…… • Risk Management…… • Emergence of email and, more recently, of Social Networking Sites (Facebook, Myspace, Twitter, etc.) • Use and Consent; Expectations as to privacy. • Privileges and Confidentiality • Confidentiality Notice • Computer System Use/Consent Notice • State as well as federal requirements • Rule 26 FRCP • La Code of Civil Procedure

6. Example of Confidentiality Notice: • This email communication may contain confidential information which also may be legally privileged and is intended only for the use of the intended recipients identified above.  If you are not the intended recipient of this communication, you are hereby notified that any unauthorized review, use, dissemination, distribution, downloading, or copying of this communication is strictly prohibited.  If you are not the intended recipient and have received this communication in error, please immediately notify us by reply email, delete the communication and destroy all copies.

7. Example of Computer System Use/Consent Notice: • This message sent from a computer system which is the property of the State of Louisiana and the Department of Natural Resources (DNR).  It is for authorized business use only. Users (authorized or unauthorized) have no explicit or implicit expectation of privacy. Any or all uses of this system and all files on this system may be intercepted, monitored, recorded, copied, audited, inspected, and disclosed to Department of Natural Resources and law enforcement personnel.  By using this system the user consents to such interception, monitoring, recording, copying, auditing, inspection, and disclosure at the discretion of DNR. Unauthorized or improper use of this system may result in administrative disciplinary action and civil and criminal penalties as stipulated in DNR's Computer Use Policy, and in applicable State laws, and continuing to use this system indicates awareness of and consent to these terms and conditions of use.

8. Background and Why We are Here • DNR and other departments received a formal “Litigation Hold” letter from Attorney General Buddy Caldwell dated August 23, 2010, advising that the State is investigating and evaluating any and all claims it may have arising out the Deepwater Horizon (“DWH”) disaster, including, but not limited to potential claims arising under the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701 et seq., the Louisiana Oil Spill Prevention and Response Act, La. R.S. 30:245 1 et seq., the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1333 et seq., the Clean Water Act 33 U.S.C. §§ 1251 et seq., Louisiana’s Environmental Quality Act, La. R.S. 30:2001 et seq., state tort law, C.C. Art. 2315, general maritime law, or any other law governing the fire and explosion, as well as the discharge of oil and related substances from the floating DWH rig and Macondo well.

9. Litigation, ultimate roll call of damage, and the scope of final insurance recovery are all unknown at present, with analysts reporting that the aftermath is of unprecedented scale and complexity compared to previous disasters which themselves took many years to unfold and resolve. A July 2010 analysis by the British newspaper Financial Times on the aftermath cites legal sources as saying that "at some point the scale of the litigation becomes so large that it really is novel", that "the situation is likely be complicated further because the variety of probable cases means it will be hard to aggregate them into so-called class actions” and that there is "no way to put this in historical context because we have never faced anything like this before”. As with the Exxon Valdez disaster, litigation is being discussed in terms of a 20 year timescale.

10. The Attorney General’s Litigation Hold Directive • Against this background the AG’s letter further advised that: One of the many potential outcomes of the ongoing response and investigation could be civil lawsuits, criminal investigations, or enforcement actions arising under state or federal laws. Moreover, it is anticipated that one or more of our agencies could receive public records requests and/or subpoenas arising out of the more than 250 lawsuits already filed by private parties in this matter, or in related DWH litigation (such as shareholder and insurance coverage suits). The State also has its own claims, and we need to preserve the evidence necessary to preserve those claims. As an example, the State is entitled to recover, among other things, for a loss of taxes, royalties and fees, for increased costs of providing public services, for damage to the state’s natural resources, and for damage to state property, including public lands.

11. Attorney General’s letter (citations omitted) • Agencies and state employees have a duty to preserve potentially relevant information that may be used as evidence in pending or reasonably foreseeable litigation. The duty to preserve potentially relevant information does not extend to “every shred of paper, every e-mail or electronic document, and every backup tape.” Rather, the scope of a party’s preservation obligations can be described as follows: Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relevant documents.

12. Accordingly, I hereby caution all staff who are working or have worked on any aspect of the responses to or investigations of the DWH matter to be diligent and mindful of the need to preserve any potentially relevant information pertaining to this incident. “Potentially relevant information” may include any tangible thing that relates to the explosion and fire and its aftermath, including the causes of the explosion, fire, or discharges, and any resulting damages, costs, or effects suffered by the State of Louisiana, its agencies or employees, and including our State’s natural resources.

13. Examples of such information might include, but are not limited to, equipment or materials salvaged during response actions, samples, and other physical things, documents such as inspection materials, field notes, analytical data for samples, internal communications, and electronic information (including e-mail, blogs or other electronic media). Work associated with the ongoing NRDA process or other damages investigations would also be included, including any studies, communications and contracts.

14. What does the Attorney General’s Instructions Mean? • This is VERY IMPORTANT and failure to comply with these instructions may result in sanctions being imposed or exclusion of evidence at trial. In order to comply with this litigation hold request, the Attorney General advised us to take the following nine specific actions, which we will now discuss, give instruction on, and, hopefully, with the aid of our attorneys and IT folk here with me, answer any questions.

15. Those Litigation Hold Instructions are: • Do not delete, throw out, shred, or otherwise destroy potentially relevant information, or allow deletion to happen by automatic deletion operations. • Maintain relevant electronically stored information (“ESI”), hard copies of documents, and tangible things as described above. You should take steps to ensure that ESI is preserved in such as way as to preserve the “metadata’ (internal computer data) embedded in the ESI. If you do not understand what this involves, please contact your IT staff to assist you with specific problems you may face. You should expeditiously identify any critical databases that may contain relevant information and which may be updated and cause the information to be lost to determine what steps, if any, need to be taken to ensure the preservation of relevant data without adversely disrupting Agency operations.

16. Take affirmative steps to prevent the destruction of any potentially relevant information that has been transferred to a state records center or any other location according to your agency’s document retention schedule developed in accordance with La. R.S. 44:411 et seq. Before any computer or electronic system that contains relevant information is retired or upgraded, or before an old computer or hard drive containing relevant information is retired or reimaged, whether because of a departing employee or otherwise, please ensure that the agency retains access to potentially relevant information after the retirement or upgrade.

17. If potentially relevant ESI has not been preserved, then immediately contact your IT staff. Under some circumstances, IT staff may be able to recover information. Maintain information subject to the litigation hold in an orderly, readily retrievable manner, keeping confidential and/or privileged information separate from publicly releasable information, and be prepared to provide materials subject to this litigation hold for review and/or production as needed for any subsequent case development, settlement discussions, alternative dispute resolution, preparation of privilege logs, discovery, pre-trial activities, and trial.

18. If you need to comply with an e-mail space quota, do not delete potentially relevant e-mail or move it from the e-mail system. You may move the potentially relevant information to an existing archive within the e-mail system if that archive exists on a network hard drive and will not be subject to accidental deletion. If you do not know if your archive meets these criteria, or if you need to create an archive, do not delete or move anything, and contact your IT department. If you are a supervisor, monitor and take all reasonable steps to make sure those you supervise comply with these instructions. It is our recommendation that each agency’s Executive or General Counsel should implement this litigation hold and document all efforts to preserve evidence at the agency they serve.

19. Please be prepared to cooperate with our office at a future time in collecting the information being preserved. In the future, you may receive additional instructions for producing this information. In the meantime, please carefully review this information and preserve all materials in accordance with these instructions.

20. Remember, Public Records RequestsR.S. 44:1  (2)(a) Allbooks, records, writings, accounts, letters and letter books, maps, drawings, photographs, cards, tapes, recordings, memoranda, and papers, and all copies, duplicates, photographs, including microfilm, or other reproductions thereof, or any other documentary materials, regardless of physical form or characteristics, including information contained in electronic data processing equipment, having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body or concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are "public records", except as otherwise provided in this Chapter or the Constitution of Louisiana.

21. We have had and will continue to receive a considerable amount of public records requests seeking information and documents related in any way whatsoever to the DWH disaster. In fact, the attorney General has engaged special counsel to help in dealing with public records requests related to the DWH disaster. While it will be our task as General Counsel to determine any exceptions, exemptions and/or limitations to the public records law, and while we will work with the Attorney General and special counsel in doing so, I would further caution you to keep the definition of “public record” in mind when we ask for your assistance in responding to these records requests.

22. Typical Public Records Request John Q. Public 2010 Inquisitive Minds Square Circle City, Louisiana 80018 Records Custodian Louisiana Department of Natural Resources Via Facsimile Post Office Box 94396 225-342-7029 Baton Rouge, Louisiana 70804 Date ________, 2010 Re: Request for Public Records under the Louisiana Public Records Act Dear Records Custodian: Pursuant to the Freedom of Information Act (“FOIA”) and the Louisiana Public Records Act, La. Rev. Stat. Ann. § 44:31 (“Act”), I am making a public records request in my capacity as a full-time journalist with The Associated Press. Pursuant to the Law, I am requesting a copy of the following public records: all files, records, and documents in your possession or control that refer, relate to, or concern any money awarded to the Louisiana Department of Natural resources by British Petroleum PLC in the aftermath of the Deepwater Horizon rig explosion and Gulf oil spill. This request includes, but is not limited to, all documents, telephone message logs, handwritten notes, electronic mail, correspondence and memoranda, and all communication and correspondence, in whatever tangible medium. Please release information pursuant to my request as it is received and/or reviewed by your office, rather than waiting to send me all the material I have requested at once. In addition, I request that these documents be made available to me in electronic format. I also request that you waive all fees associated with this request. As you know, the law permits you to reduce or waive the fees when release of the information is limited to a public purpose, and unless a court determines otherwise, no fee is to be charged for examination or review to determine if a record is subject to disclosure. La. Rev. Stat. Ann. § 44:32(C)(2) and (3). I am requesting the information in my capacity as a representative of the news media, and the material sought will contribute significantly to the public interest because it will shed light on how the government has carried out its responsibilities with respect to the use of taxpayer money in the disbursement of funds in response to the referenced event. If you deny this request for a fee waiver, please advise me in advance of the estimated charges if they are to exceed $100. Also, if you question whether any of the records requested is a public record, you are required to notify me in writing and within three days, exclusive of Saturdays, Sundays, and legal public holidays, of the receipt of this request of your determination and the reasons therefore, and your written notification must contain a reference to the basis under law which exempts such record, or any part thereof, from inspection, copying, or reproduction. La. Rev. Stat. Ann. § 44:32(D).

23. Article 12, section 3 of the Louisiana Constitution provides that “[n]o person shall be denied the right to . . . examine public documents, except in cases established by law.” This right is also guaranteed by Louisiana Statutes, which provides: “Except as otherwise provided in this Chapter or as otherwise specifically provided by law . . . any person of the age of majority may inspect, copy or reproduce, or obtain a reproduction of any public record.” La. Rev. Stat. Ann. § 44:31(B)(1). Further, please be advised that I am prepared to pursue whatever legal remedy necessary to obtain access to the requested records. A willful violation of the open records law can result in fines of up to $2,000 and imprisonment of up to six months, or both. La. Rev. Stat. Ann. § 44:37. Additionally, if a court finds your withholding of records to be unreasonable or arbitrary, it may award civil penalties of up to $100 per day, attorney fees and other costs of litigation, for which you can be held personally liable. See La. Rev. Stat. Ann. § 44:35(E).   I recognize that the right of access to public records is not absolute. However, the Louisiana legislature has made clear that only those exceptions, exemptions and limitations provided for in Title 44, Chapter 1 or in the Constitution of Louisiana can limit the public’s right of access to public records. Please be advised that I am not seeking records which are exempt under the express provisions of the Public Records Act or the Louisiana Constitution. Please call or write if you have any questions. Otherwise, I expect your immediate attention to this public records request. With best regard, I am, Sincerely yours, John Q. Public

24. All files, records, and documents in your possession or control that refer, relate to, or concern any money awarded to the Louisiana Department of Natural resources by British Petroleum PLC in the aftermath of the Deepwater Horizon rig explosion and Gulf oil spill. This request includes, but is not limited to, all documents, telephone message logs, handwritten notes, electronic mail, correspondence and memoranda, and all communication and correspondence, in whatever tangible medium.

25. The Bottom Line…… I want to emphasize again that following these measures is indeed very important, and that failure to comply with them very well could result in sanctions being imposed or the exclusion of evidence the state may need to use at trial. We also do not want to risk violating our public records laws. Your cooperation is appreciated. Thank you for your time.