How to Respond to Requests for Electronic Evidence

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How to Respond to Requests for Electronic Evidence:
This chart is a very basic guide to assist technical support personnel determine the privacy controls for common types of requests for evidence, i.e. whether to preserve the information in each type of situation and also whether to divulge the information. For more complete information contact legal counsel or OCIO:Security, Privacy and Policy: itpolicy@berkeley.edu.

There are also many technical activities associated with expert management of electronic evidence. For consultation regarding technical aspects of evidence handling, contact security@berkeley.edu.

See the Key to abbreviations, below.	Federal law		State law		University or Campus Policy
	Preserve?	Divulge?	Preserve?	Divulge?	Preserve?	Divulge?

Civil law – when a court case has been filed	E, P	S	P	S	—	—
Civil law – legal action “reasonably anticipated”	E, P	M	P	M	—	—
Criminal law – when a court case has been filed	P	S	P	S	—	—
Criminal law – legal action “reasonably anticipated”	M	M	M	M	—	—

Federal agency or other law enforcement agency request for electronic information (including police):
a. information does not reveal activities of UCB individuals	M	M	—	—	—	—
b. information does reveal activities of UCB individuals:
Without Preservation Order or other appropriate written authorization	X	X	—	—	—	—
With written auth (and UC Counsel legal review)	P	S	—	—	—	—

Internal Audit investigating

Misconduct – Campus OHR investigating	—	—	—	—	P	A or S
Misconduct – Student Judicial Affairs investigating	—	—	—	—	P	A or S
Misconduct – others investigating	—	—	—	—	P	A or S

Key:

A = Access allowed if you have written consent of the holder* —or— follow UC Electronic Communications Policy (ECP) procedures for approval of access without consent.
D = Divulge as requested.
E = Preservation is required within the bounds of "e-Discovery" rules, with few exceptions. See New Federal "e-Discovery" rules affect IT practices (Spring 2007 iNews).
M = Maybe; i.e. depends who's asking. Need more information to determine.
P = Preserve if not too burdensome (requires discussion to clarify).
S = Subpoena, warrant, NSL, Preservation Notice, etc. upon UC/UCB legal counsel-approval of written legal instrument (e.g. to determine whether the activities involved in preservation would inappropriately compromise required secrecy, along with their review of other legal issues).
X = Do not preserve/divulge.

* Systems administrators and other operators of University electronic communications services are excluded with regard to electronic communications not specifically created by or addressed to them.

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