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1106 Preserving Records for Legal Purposes
Vice President and General Counsel
Office of the Vice President and General Counsel
August 30, 2011
August 30, 2011
This policy applies to all University employees, including faculty, staff, part-time employees, and student employees.
Reason for the Policy
Federal and state law require Yale employees to preserve potentially relevant Yale records once they have reason to believe the records may be needed for a legal proceeding, such as a lawsuit, a government investigation, or a government audit. Failure to meet this obligation could result in civil or criminal penalties against Yale and its employees. The purpose of this policy is to establish requirements that will help Yale and its employees comply with the law.
Employee: An Employee is any member of the Yale faculty or staff, including part-time employees and student employees. For the purpose of this Policy, the term Employee also includes a Yale student or trainee who has created or received a Legal Record in the course of providing a service to Yale or to others as part of his or her education or training (for example, a student serving on a University committee or a medical resident who treats a Yale patient).
Record: A Record is any information preserved in a fixed medium, whether on paper, electronically, or otherwise. For example, the term includes e-mail and voicemail messages, calendar entries. photographs, and “metadata” that computers store in relation to a user’s electronic documents.
Legal Record: A Legal Record is a Record relating to the subject of an existing or anticipated legal proceeding. A Legal Record is covered by this Policy if (i) it is stored in a facility or device owned by Yale; or (ii) the Record is in the custody or control of an Employee and the Employee created or received the Record in his or her role as an Employee. If a Legal Record meets the second criterion above, it is covered by this Policy, whether or not it is stored in a Yale facility or on a device owned by Yale.
Preserve: To preserve a Legal Record, an Employee must retain it in its original medium and not alter, delete, remove, discard, or destroy, directly or indirectly, any of the information that the Record contains.
Employees must inform the Office of the General Counsel (OGC) if they have reason to believe that Yale has become or is likely to become a party to a legal proceeding, such as a lawsuit, a government investigation, or a government audit. For example, Employees should report any of the following events:
- formal notice of a lawsuit or discrimination claim;
- an oral statement that a person or entity intends to bring a lawsuit or a claim of discrimination, retaliation, or harassment;
- receipt of a letter from a lawyer stating a legal claim or making a demand for compensation;
- a meeting over an employment or business dispute to which the other party brings a lawyer; or
- a communication from a government agency announcing an investigation or audit (whether the audit is routine or not).
(No Employee should accept service of a summons or a subpoena directed to Yale or a Yale school or program. The person serving the summons or subpoena should be directed to the OGC.)
As discussed below, the OGC will determine whether a given set of circumstances obligates Employees to preserve Legal Records, and it will inform Employees of its decision.
Once Employees have reason to believe that Yale has become or is likely to become a party to a legal proceeding, they must preserve all Legal Records until instructed otherwise by the OGC. Employees must immediately contact the Office of the General Counsel for instruction on preserving records.
Usually, Employees will first learn of their obligation to preserve specific Legal Records when they receive a notice from the OGC. However, if Employees have reason to believe that Yale has become or is likely to become a party to a legal proceeding, they must inform the OGC and begin preserving Legal Records without waiting for instructions to do so. The obligation to preserve Legal Records also applies to Records created after a legal proceeding has begun, but Employees should avoid creating new Records regarding an existing or anticipated legal proceeding, except in coordination with the OGC. Employees who have been instructed to preserve Legal Records and who are leaving Yale employment must inform the OGC so that other arrangements can be made to preserve the Records in their care.
The OGC will determine whether a given set of circumstances obligates Yale and its Employees to preserve Legal Records. If the OGC determines that such an obligation exists, it will identify affected Employees; notify affected Employees and provide them with specific instructions on how to meet their obligations; notify ITS and provide instructions regarding its responsibilities; and periodically remind affected Employees of their obligation. If the OGC determines that a given set of circumstances does not create an obligation to preserve Legal Records or that an existing obligation has ended, it will instruct affected Employees that they may resume their usual recordkeeping practices.
When instructed to do so by the OGC, Information Technology Services (ITS) will preserve electronic Legal Records stored on centrally controlled Yale computer systems; gather and preserve electronic Legal Records stored on devices controlled by Employees; and help Employees preserve electronic Legal Records.
Alleged violations of this Policy by faculty or staff members may be pursued in accordance with the appropriate disciplinary procedures, as outlined in the Faculty Handbook and the Staff Personnel Policies and Practices Manual, and other applicable materials, and discipline may be imposed, up to and including termination. Staff members who are members of University-recognized bargaining units may be disciplined for violations of this Policy, up to and including termination, in accordance with the relevant disciplinary provisions set forth in the agreements covering their bargaining units. Alleged violations of this Policy by students or trainees may be pursued in accordance with the appropriate disciplinary procedures of their schools or programs, and discipline may be imposed, up to and including withdrawal from the University.