Preservation Letters and Process

We understand that receiving a preservation notice from the Office of University Counsel can be confusing. We have developed these Frequently Asked Questions to help recipients to better understand the purpose of the letters as well as their obligations.  Should you have any questions, don't hesitate to contact our office.

Who is issuing this preservation letter?

Preservation letters are issued by William & Mary’s Office of University Counsel. This office consists of two attorneys, University Counsel Carrie Nee and Associate University Counsel Sarah Melchior. Carrie and Sarah are appointed by the Attorney General of Virginia to provide legal representation for William & Mary, and to provide legal advice and guidance to William & Mary’s Board of Visitors, executives, administrators, faculty, and staff when these individuals are acting in their official capacities.

Carla Costello, who handles many of the logistical aspects of preservation, is the Executive Assistant for the Office of University Counsel. Carla also serves as William & Mary's Section 504/ADA Coordinator and is a shared executive assistant for the Office of Compliance & Equity; when distributing preservation letters or otherwise assisting in the preservation process, she represents only the Office of University Counsel.

Why are preservation letters being issued?

When the Office of University Counsel becomes aware of certain precipitating events the university’s attorneys have a legal and ethical duty to preserve records that are or may be relevant to the underlying matter. Common catalysts include:

• William & Mary being named as party to a lawsuit
• Receiving a demand from an outside attorney that William & Mary preserve records related to a particular matter
• Receiving notice that a complaint has been filed against William & Mary with the U.S. Equal Employment Opportunity Commission

Why am I receiving this preservation letter?

The Office of University Counsel recognizes that William & Mary generates many different types of records, and that the responsibility for the creation and maintenance of these records is spread across many different departments and individuals. You have received a preservation letter because University Counsel believes that it is likely you are a custodian of records that are relevant to the underlying matter.

The preservation letter is intended to:

• acquaint you with the underlying matter
• alert you that the obligation exists to preserve relevant records until otherwise instruction by University Counsel
• provide some guidance about general steps you can take to preserve information
• open a conversation between you and University Counsel about any other elements of the preservation process about which you might have questions

Am I the only person receiving this letter?

While the number of individuals who receive preservation letters varies depending on the underlying matter, in most cases multiple William & Mary employees receive these letters, since University Counsel seeks to provide instruction to all identified custodians of potentially relevant records. University Counsel also welcomes recommendations for additional recipients; please contact our office if you think there may be employees outside your department or office who possess responsive records and have not been contacted.

Am I the subject of litigation or investigation?

Unless you are otherwise advised by University Counsel, receiving a preservation letter does not mean that you are party to a lawsuit, under investigation, or otherwise the subject of an action or inquiry. The issuing of a preservation letter is also not a disciplinary action.

Do I need to turn records over to the Office of University Counsel or another office/outside party?

Until or unless you receive specific instructions from University Counsel, you are not being asked to turn over records to our office, another William & Mary office, or any outside party. If you find it useful to collect and review your relevant records you may do so. If you believe there is a reason that University Counsel should assume custody of particular records during the preservation period, please contact our office to discuss. 

What impact will an email “hold” have on my Outlook account?

An email “hold” is a mechanism by which Information Technology prevents permanent deletion of messages and other items stored within your William & Mary Outlook Account. The hold will not alter your user experience; deleting a message will move it to the “Deleted Items” folder, and deleting items from this folder will cause them to disappear from your account. However, IT will be able to retrieve any inadvertently lost items if needed.

Is the Office of University Counsel or Information Technology reviewing my email?

The Policy on Granting Access to Electronic Records permits University Counsel to access email (and other types of electronic record) in order to satisfy a court order or subpoena or to respond to a governmental audit, investigation, inquiry, or information request. Absent one of these scenarios, (or an otherwise compelling need to access information contained in your email account) University Counsel and Information Technology do not review held email accounts as part of preservation. If the matter escalates from preservation to discovery (which can involve the collection, review, and turnover of records), you will be informed by University Counsel.

What if I have disposed of records prior to receiving this preservation letter?

If you have disposed of relevant records in accordance with Library of Virginia retention schedules prior to receiving preservation instructions, you do not need to attempt to recreate the records. Disposition of relevant records going forwards must be halted until you receive instruction from University Counsel.

What should I do if standard record retention schedules call for the destruction of preserved documents?

Preservation instructions issued by the Office of University Counsel supersede the standard records retention and disposition scheduled established by the Library of Virginia. Relevant records should not be disposed or transferred to archives until you receive instruction from University Counsel.

With whom can I discuss this preservation letter?

University Counsel requests that you keep the preservation letter confidential. Your communications with William & Mary’s attorneys and their advice to relating to this process are privileged and confidential. Sharing information from these communications with non-attorneys can cause a waiver of this attorney-client privilege. Please refrain from discussing the letter and the underlying matter with your colleagues, absent and instruction or consent from the Office of University Counsel to do so.

The exception to this instruction is discussion necessary to comply with the obligations outlined in this letter and/or fulfill your ongoing responsibilities to William & Mary. For example, if you are a manager and one of your direct reports has custody of relevant records, you may share all or part of the instructions with this employee. If compliance with the preservation instructions will alter your office’s standard business practices, you may discuss the preservation process with impacted colleagues.

What is the purpose of the “Device Audit”?

The Office of University Counsel developed the Device Audit form in recognition of the fact that William & Mary employees may regularly use devices and systems beyond university-issued computers, Outlook email, and personal network drives. The form encourages you to consider how and where you may have stored responsive records, and to report this information to University Counsel. If William & Mary is obligated to collect and produce relevant records in the future, our hope is that these audits will ease and streamline the process for both University Counsel and individual records custodians.

It is important to be aware that communication about or documentation of William & Mary business constitutes a university record even if created or transmitted using a personally-owned device. This includes personally-owned cell phones, computers or tablets, and individual web-based email or document management accounts.

What if I am under preservation instruction when I leave William & Mary or change jobs?

If you intend to leave William & Mary and have been instructed to preserve records, please contact the Office of University Counsel as soon as possible. This will allow us to transfer the preservation obligation to another employee or otherwise provide for the maintenance of the records.

Please also inform our office if you intend to change positions within the university. Depending in the nature of the underlying matter and your roll in the preservation effort, preservation instructions currently in place may need to be updated.

How long will I be under preservation instruction?

The timeline of a particular preservation effort varies depending on the underlying matter. Once the initial letter has been issued, University Counsel will send periodic reminders regarding the scope of the preservation instruction. Our office will also contact you when preservation is no longer necessary. You must continue to maintain responsive records until University Counsel frees you from the preservation obligation.