The Litigation Hold Arrives the Same Morning as the Records Request
A city clerk's office has a staff of three. On Monday morning the clerk receives four items: (1) a reporter's request for 'all emails and text messages between the mayor and the city administrator from January 1 to March 31 concerning the waterfront developer'; (2) a litigation hold notice from the city attorney covering all records about the waterfront project; (3) a request from the public works director to destroy 2019 p-card receipts whose three-year retention period has expired; and (4) a complaint that the mayor conducts city business by text on a personal phone and that his messaging app auto-deletes messages after 30 days. Last month a scanning vendor overwrote a shared drive folder containing project correspondence. The retention schedule classifies text messages as 'transitory - retain until no longer needed.' State law requires written acknowledgement of a records request within five business days.
1. Sequence the clerk's actions for the next five business days and justify the order.
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Preservation comes first because it is the only step that cannot be undone later.
Day 1 - freeze destruction. Send a written, dated suspension notice to every custodian, IT, the public works director, and the vendor, covering all waterfront records in any format and on any device. Instruct IT to disable auto-deletion and to suspend any scheduled purges, device wipes, or mailbox retentions. Deny the p-card destruction request in writing, citing the hold. A retention period expiring is permission to destroy, never a duty to destroy - and permission disappears the moment a hold or request attaches.
Day 1-2 - preserve the damaged folder. Ask IT to stop writing to the affected drive, attempt restoration from backup or the vendor, and document what was lost, when, and what recovery was attempted. This documentation may be needed in the litigation and may be discoverable.
Day 2-3 - acknowledge the request in writing within the five-day deadline: state the date received, the scope as the office understands it, the estimated response date, any clarification needed, and the fee estimate. Acknowledgement is not production, and the deadline for acknowledgement is usually shorter than the deadline for production - missing the acknowledgement is an easy, avoidable violation.
Day 3-14 - search and review. Pull emails, texts, and messages from all custodians including personal devices used for city business; route to the attorney for exemption review; produce with a privilege/exemption log.
Throughout - document every decision in a single request file, because the requester may appeal and the city may have to defend its process.
2. What is the legal and records-management exposure from the mayor's personal-phone texts and the 30-day auto-delete, and what should the clerk do about it?
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The messages are probably public records. Content, not the device, generally determines status: messages discussing or transacting city business are records of the city even when sent from a personal phone, in most jurisdictions. A retention schedule labeling texts 'transitory - retain until no longer needed' does not convert substantive policy discussions into disposable chatter, and it does not authorize auto-deletion. The label is also a poor fit for a project under litigation hold.
The auto-delete is the serious problem. Once the city knows of the hold and the request, continued deletion can constitute spoliation of evidence and a records-retention violation, exposing the city to sanctions, adverse inference instructions, and statutory penalties. Auto-deletion that runs after notice is not a neutral default; it is destruction with knowledge.
Steps. (1) Direct the mayor in writing to disable the auto-delete and preserve the device contents, and offer to have the city capture the messages. (2) Ask IT or the attorney to image or export the relevant messages, or use the city's mobile-device management tooling if the phone is enrolled. (3) Include personal devices and messaging apps in the hold notice. (4) Advise the attorney that potentially responsive material may already have been lost, so the city can decide on disclosure. (5) Recommend a policy requiring city-business messages to be copied to the city system, or a city-issued device requirement, plus annual training. (6) Do not personally delete anything, and do not advise the mayor to do so - that converts a records problem into a personal ethics problem.
3. Should the clerk approve the public works director's request to destroy the 2019 p-card receipts? Explain.
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No. Three reasons, any one of which is sufficient.
The hold controls. The litigation hold from the city attorney covers waterfront records. If any 2019 p-card receipt relates to the waterfront project, the developer, or the officials named in the dispute, it must be preserved regardless of the retention schedule. The clerk cannot approve destruction of a subset that may be responsive.
A pending request controls too. The reporter's request is broad enough to reach purchasing records connected to the project. Destroying records after a request is received, even records not yet identified as responsive, invites a claim of bad faith and, in some states, a separate penalty.
Expiration is not a mandate. A retention schedule sets a minimum period during which records must be kept and a point after which destruction is permitted. It never compels destruction, and most schedules themselves carve out records under audit, investigation, litigation, or open-records request. P-card receipts also commonly support financial audits with look-back periods longer than three years; the finance director should confirm whether an audit, grant, or bond covenant requires a longer retention.
What to do instead. Tell the director in writing that destruction is suspended, state the reason, and give a review date. Log the request and the denial. When the hold is lifted and any audit window has closed, the records can be destroyed through the normal documented process - certificate of destruction, inventory, and approval by the records officer - rather than an informal request.