1.0 Policy Purpose
The purpose of this policy is to set forth the procedures that the University will follow when records must be preserved, and the obligations of University employees to preserve records in these circumstances.
2.0 To Whom the Policy Applies
This policy applies to all University employees, which includes faculty and staff, and covers all Records (as defined below), used in conducting University business.
Note: For purposes of this policy, the term “employee” shall also be construed to mean a volunteer in the event a University volunteer maintains records subject to a Litigation Hold.
3.0 Policy Statement
In certain circumstances, the University has a legal obligation to preserve records that may be relevant to potential or actual legal or regulatory actions against the University. In those circumstances, the routine destruction of records is suspended, and the records must be preserved.
For the purpose of this policy, the terms below have the following definitions:
- Legal Claim:
An anticipated or pending lawsuit or other legal action against the University and an investigation or legal action by a governmental or administrative agency.
- Litigation Hold:
The process by which the University preserves Records related to the Legal Claim, typically initiated by a Litigation Hold Notice.
- Notice to Preserve Records (or Notice):
A written notice issued by the Office of the General Counsel (“OGC”) to cease destruction and take steps to preserve Records related to the Legal Claim, and therefore subject to the Litigation Hold.
All records, materials, documents, information, and/or communications that relate or may pertain, in any way, to the Legal Claim, regardless of form, whether electronic or non-electronic, written, audible, real, or visual, created, received, maintained, or stored in the transaction of University business, whether conducted at home or work, and may include, but is not limited to, physical materials or items, non-electronic materials or electronic information stored on desktop or laptop computers, hosted/cloud storage services, mobile/handheld devices, smartphones, tablets, gaming devices, wearable technology, smartwatches, virtual/voice assistants, smart speakers, servers, removable media (e.g., tapes, disks, CDs, DVDs, Blu-rays, USBs, flash drives, memory sticks, etc.). It may also include e-mail, word processing documents, spreadsheets, databases, instant messages, text messages, calendars, voice messages, audio recordings, photographs, videos, SharePoint files, Wiki materials, telephone or meeting logs, contact manager information, internet usage files, log data, metadata, or other computerized information or databases that may contain records related or pertinent, in any way, to the Legal Claim.
An employee who becomes aware of a Legal Claim must immediately notify the OGC. The OGC will determine whether to initiate a Litigation Hold and will identify the relevant employees who should be subject to the hold. When the OGC determines that a Litigation Hold is necessary, the following shall occur:
OGC: Will issue a Litigation Hold Notice (“Notice”) in writing to relevant employees. The Notice will inform the employees of their obligation to identify and preserve all Records that relate to the Legal Claim that is the basis for the Litigation Hold. When employees receive a Notice, they must immediately do the following:
- Confirm receipt and understanding of the Notice and provide a statement in writing that they will comply with the Notice.
- Preserve all Records under their control that are subject to the Litigation Hold. Employees are encouraged to contact the Office of Information Technology (“OIT”) at firstname.lastname@example.org for recommended methods for preserving the Records.
- Suspend any automatic deletion, overwriting, or any other destruction of Records that are subject to the Litigation Hold. A Litigation Hold supersedes any document retention policy which might otherwise require or permit the destruction of Records after a certain date or event. This includes any Records that might otherwise be automatically deleted by automated computer programs.
- Preserve Records on home or personal computers or personally-owned devices that are used for any University-related business (including email contained in non-Brown email accounts).
- Preserve any Records that are generated after receipt of the Notice that are subject to the Litigation Hold.
OIT: Will send employees who receive a Notice an Electronic and Paper Records Questionnaire. The Questionnaire must be completed and returned to OIT within ten (10) business days of receipt, or as soon as practicable.
Department Chair or Supervisor: If an employee who receives a Notice separates from employment during the course of a Litigation Hold, the employee’s department chair or supervisor must take possession of Records under the control of the departing employee that are subject to the Litigation Hold and promptly notify the OGC.
Notices are privileged and confidential attorney-client communications. Litigation Hold recipients are expected not to speak to others who do not have a need to know about the matter, unless directed or permitted to do so by the OGC. Otherwise, the privilege may be inadvertently waived.
Once a Notice has been issued, the OGC may issue periodic reminders to employees of their obligations under the Litigation Hold.
The OGC will determine and communicate in writing to employees who have received a Litigation Hold when a Litigation Hold may be lifted and Records no longer need to be preserved.
6.0 Consequences for Violating this Policy
Employees who violate this policy may be subject to disciplinary action up to and including suspension without pay or termination of employment.
7.0 Related Information
Brown University is a community in which employees are encouraged to share workplace concerns with University leadership. Additionally, Brown’s Anonymous Reporting Hotline allows anonymous and confidential reporting on matters of concern online or by phone (877-318-9184).
The following information complements and supplements this document. The information is intended to help explain this policy and is not an all-inclusive list of policies, procedures, laws and requirements.
7.1 Related Policies:
7.2 Related Procedures:
7.3 Related Forms:
- Litigation Hold - Electronic Records Questionnaire