Overview
January 2025
This guide documents the protocol to follow if a Library employee receives a public records request or a legal request for documents or testimony in their capacity as a UC Berkeley Library employee. The guide does not address responding to such requests if they pertain to non-work activities.
The guide covers four scenarios in which a legal request may be directed to an individual or the Library:
- Summons and Complaint: If a lawsuit has been initiated naming the university, the Library, or an employee as a defendant, a plaintiff transmits the “announcement” or notice to named defendant(s) of the suit through documents called a Summons and Complaint.
- Subpoena: If a lawsuit has already been filed, the parties to that lawsuit may seek information from non-parties in the form of documents and/or testimony. The parties will transmit their requests for documents or testimony via a document called a Subpoena. A Subpoena compels the non-party’s response, even if the response consists of objections or asks the court to “quash” the subpoena.
- Declaration or Affidavit: If a lawsuit has been filed, the parties may wish to discover information without going through formal subpoena channels. They may ask the employee to voluntarily — without their being legally compelled to — provide documents or information, and sign a document called a “declaration” or “affidavit” in which the employee attest to facts about the documents and information being produced.
- Public Records Request: Regardless of whether there is a pending or contemplated lawsuit, the California Public Records Act provides a right for all individuals to ask for certain government documents.
The University provides campus-wide information on responding to these requests or demands. It can be overwhelming to sift through, however, so the Library created this guide. Our Library protocol does not alter campus procedures; it merely condenses relevant campus information. In addition, there are Library-specific needs related to communication that we have included.
In brief:
- If you receive a Summons and Complaint, Subpoena, or Public Records Act request, you should immediately contact the University Office of Legal Affairs (OLA) by calling 510-642-7122. In addition, you should advise your direct supervisor, the AUL for your unit, and include librarycao@berkeley.edu on the email.
- If you receive a request for a voluntary Declaration, you should respond with the text indicated in the guide below.
If you have non-urgent questions about a legal request, you may also contact Scholarly Communication & Information Policy (SCIP) by e-mailing schol-comm@berkeley.edu.
Summons and Complaint
What it is
When a plaintiff files a lawsuit, they have to provide the named defendant(s) with a copy of the legal claims and alleged facts they are asserting. That document is called the “Complaint.” When providing a copy of the Complaint, the plaintiff also includes a document called the “Summons,” which initiates the legal obligation to respond to the Complaint within a certain period of time. Failure to comply with these requirements can result in penalties, including a default judgment being entered against the named defendant(s).
Formal personal delivery of the Summons and Complaint is required, and parties usually hire what is called a “process server” to deliver those copies. The plaintiff may also send an additional copy of the Summons and Complaint by e-mail as a courtesy, though the e-mail does not count as formal service of a Complaint.
What to do
It is unlikely that someone will try to serve you with a Summons and Complaint that either names the Library or you as a defendant. However, you should know what to do if it happens.
If a process server attempts to serve you with a Summons and Complaint naming the Library as a defendant, you must decline and direct the process server to the systemwide Office of the General Counsel (OGC), 1111 Franklin Street, 8th Floor, Oakland, CA 94607-5200. OGC is the only entity authorized to accept service of a Summons and Complaint that names any UC academic unit or department.
If a process server serves you with a Summons and Complaint naming you as a defendant, you should contact UC Berkeley’s Office of Legal Affairs (OLA) at 510-642-7122 immediately. Colleagues or managers may not accept personal service of process on behalf of a fellow employee. OLA will advise as to whether they will be providing or coordinating a response on your behalf, and/or whether you should retain personal counsel.
In either instance, along with contacting OLA, you should also notify the AUL responsible for your unit or division, along with your unit or department head if that is someone other than you.
Subpoenas
What it is
If a lawsuit has been filed, the parties to that lawsuit may seek to discover information from non-parties (i.e. third parties) in the form of documents and/or testimony. The way they ask for this information is by serving a document called a Subpoena. A Subpoena is a legal document that commands a person or entity to testify as a witness at a specified time and place (at a deposition, trial, or other hearing), and/or to produce documents or other tangible objects in a legal proceeding. Subpoenas are time-sensitive with court-imposed deadlines.
Why would a party seek documents or testimony from the Library? In the rare cases in which a subpoena is served to the Library or its staff, the underlying dispute is often one of patent litigation. In patent litigation, a defendant is typically trying to demonstrate that the technology or facts supporting the patent were already known or disclosed to the public as of a certain date—and thus that the defendant was not infringing the patent (or the patent’s issuance was invalid) because the information was already publicly available. One way that a party might try to demonstrate the public availability of information as of a certain date is by showing the information was available on public library shelves, published in academic journals, or appeared in a thesis. So, the party will look at a library’s catalog records and cataloging processes to determine when a library made the publication available “on the shelves.” In many cases, they choose the UC Berkeley Library because we have a large collection, and thus are likely to have and have cataloged the work(s) in question.
What to do
Technically, the only office within the Library authorized to accept service of a subpoena is the University Library Administrative Services Office, which has been designated as “Custodian of Records” for the Library. Unfortunately, many law firms do not bother to check this first.
If a law firm or process server mails or delivers to you a subpoena asking for records or testimony, do not reply. Immediately notify OLA by either calling 510-642-7122 or e-mailing OLA’s Public Records and Subpoena Coordinators, Liane Wong (lianewong@berkeley.edu) and/or Janesa Shearer (janesa@berkeley.edu). It is very important you act quickly because the time period in which to respond to a subpoena is very short, and the subpoena may be calling for your personal appearance with little advance notice.
Note that service of a subpoena by e-mail is not valid unless you or the Library provided notice or approval first to the serving party. Nevertheless, if you do receive a subpoena by e-mail, follow the same procedures as above and notify OLA immediately.
Do not start responding to the subpoena and do not start gathering any documents until you have spoken with and received instructions from OLA. There may be aspects of the subpoena that OLA objects to (described below) and for which a response is not needed.
You should also notify the AUL responsible for your unit or division, along with your unit or department head if that is someone other than you.
What happens next
OLA will guide you through what happens next, and may involve multiple Library units in the subpoena response. Depending on what OLA learns in the Library staff interview process, OLA may formally respond to the subpoena in a number of ways:
- By asking the court to “quash” or modify the subpoena if aspects of the subpoena are inappropriate (e.g. the questions are too broad or burdensome; service was improper; the information is not necessary for the case; the requested information is covered by privilege; the court lacks jurisdiction over the recipient; etc.); or
- By stating objections to certain aspects of the subpoena, but agreeing to provide responsive documents or testimony to the remainder; or
- By agreeing to provide responsive documents or testimony.
In evaluating a path forward, OLA will work with the Library department or responsible individual having pertinent information, knowledge, or documents being sought. The timeframe for response is very short, and departments must be prepared to act quickly to assemble information as instructed by OLA. However, do not begin responding to the subpoena until you receive OLA’s instructions as to what is appropriate and reasonable.
Please keep your unit head and AUL up to date on progress after alerting OLA.
Declarations or Affidavits
What it is
Sometimes law firms or parties want to take a less burdensome (or perceived easier) route and request that the Library or individual staff members voluntarily provide signed “Declarations” or “Affidavits” attesting to various Library practices or the availability of information, that the law firm will then use in pending litigation. In a Declaration, you would be representing in your professional capacity (or if Records Custodian, on behalf of the Library), that the information described in the Declaration is true. This could have significant ramifications for the Library and the lawsuit if you are incorrect.
Accordingly, please do not submit to or sign a request for a voluntary declaration. If the law firm has a legitimate interest in requesting records or information in connection with a lawsuit, they should follow formal subpoena processes.
What to do
If you receive a request asking you voluntarily to verify the accuracy of catalog information, or asking you to provide and sign a declaration about Library processes or the public availability of materials, do not agree. Please respond with the following text:
The Library does not provide declarations or affidavits. If you find an item in our catalog records, there are a variety of ways in which the receipt or cataloged date for the item may or may not have been recorded in those records. You are welcome to submit a declaration in your own name attaching our catalog record as those records (and our collections, themselves) are public. Alternatively, for legal matters you may contact the campus’ Office of Legal Affairs at 510-642-7122.
If you receive a request for a voluntary declaration or affidavit on any other Library matter, do not agree. Please respond with the following text:
The Library does not provide declarations or affidavits. For legal matters you may contact the campus’ Office of Legal Affairs at 510-642-7122.
If you (not the law firm) wish to speak to someone at OLA about a request for a declaration that you received, you can contact either Liane Wong (lianewong@berkeley.edu) or Janesa Shearer (janesa@berkeley.edu) in OLA’s office directly.
Public Records Requests
What it is
In enacting the California Public Records Act (PRA) (Cal. Government Code §§ 7920 et seq.), the California Legislature recognized the “fundamental and necessary right of every person” to have access to information concerning the conduct of the “people’s business”—i.e. the conduct of the California government when the government is acting on behalf of the people of California. The PRA gives every person the right to access public records in the physical custody of state agencies or government entities (like the University of California) unless the records are exempt from disclosure by law.
There is no specific form someone must use to make a PRA request. However, the University asks for certain identifying information (spelled out on this page) so that the requests are clear and properly tailored.
What to do
If someone requests public records from the University under California’s Public Records Act request, respond with the following information:
Thank you for this request. The University offers guidance for requests made pursuant to the Public Records Act (PRA) here: https://chancellor.berkeley.edu/services/public-records/requesters. You should address your records request to the PRA coordinator at pra@berkeley.edu, and include all the information identified on the web page linked above.
Separately, you should immediately forward the PRA request to OLA’s public records coordinators by either e-mailing pra@berkeley.edu or contacting them individually (lianewong@berkeley.edu or janesa@berkeley.edu). Please copy your relevant unit head and AUL when forwarding the request to OLA.
Do not start responding to the PRA request and do not start gathering any documents until you have spoken with and received instructions from OLA. There may be aspects of the PRA request that OLA objects to and for which a response is not needed.
What happens next
OLA’s coordinators will work with you or the relevant individuals within the Library to address the scope of the PRA request, and provide guidance on what documents to collect. OLA will also help coordinate a formal response to the requester. The University is obligated to respond within 10 days of receipt of the request regarding whether the requested records are the proper subject of disclosure. Therefore, it is essential that you contact OLA as soon as possible after receiving a PRA request.
Please keep your unit head and AUL up to date on progress after alerting OLA.