Chapter 2 — The First Forty-Eight Hours

From Respondent by R. E. Alexander · Free excerpt

Where You Are

Put the notice, the phone, and a blank page on the table. Or there was no notice. A dean's assistant asked you to stop by. A detective left a voicemail. A friend texted that people are saying things. However it reached you, the clock started when it did.

The next two days are not where your case is decided. They are where the mistakes that cannot be undone get made. A deleted message may be difficult or impossible to recover; do not assume recovery will repair the loss. A text to the complainant cannot be unsent. A statement given to a detective at your kitchen table will be read back to you later, in other rooms, by people you have not met yet.

This chapter is short on explanation and long on instruction, because it is the chapter you may be reading alone, tonight, before you have a lawyer. The reasons behind each item are explained elsewhere in the book, and the cross-references are there when you have time. For now, there are seven things:

  1. Preserve everything.
  2. Delete nothing.
  3. Do not contact the complainant, directly or through anyone.
  4. Do not explain yourself, and do not post.
  5. Do not talk to police without a lawyer.
  6. Write down what you remember, and know who can read it.
  7. Sleep, eat, and tell one person.

None of this is advice about your case. These are holding actions. They keep your options open until someone who knows your facts, your institution, and your state's law can tell you what to do. Getting to that person is your first real task, and Chapter 3 explains how.

None of it depends on whether you did what you are accused of. The list is the same either way.

Preserve Everything

Start with your phone, because that is where most of the record lives. Every text and direct message with the complainant, on every platform you used. Every message with anyone else about the complainant, about the night or the relationship at issue, or about the accusation since you learned of it. Call logs. Photos and videos, with their original files. Location history. Your calendar. Rideshare, food delivery, and card transactions from the relevant days. Then do the same for your email, your social media accounts, and anything else that kept a record of where you were and who you talked to.

Preserve the things that look bad. This is the instruction people most want to ignore, and it is the one that matters most. A message you are ashamed of is a fact your lawyer needs to know about now, while it can still be explained. Context usually lives in the messages around it. A record with a convenient gap in it invites the worst reading of whatever is missing. And your lawyer cannot plan around something they have never seen.

The practical steps are unglamorous:

Some records are held by others: building-access logs, security video, institutional servers, and provider records. List the custodian, relevant dates, and risk of deletion so a focused preservation request can be made promptly. If counsel is unavailable, a limited request to the responsible institutional office can identify the records without narrating the allegation. A request is not a court order or a guarantee that the records exist or will be produced. See Appendix B.

Under the 2020 Title IX regulations, in a formal-complaint process the burden of gathering evidence sits with the institution, not with you.[1] That is a rule about who must do the work. It is not a promise that the investigator will find what helps you, or think to look for it. Assume that what you do not keep may never be recovered.

Faculty and staff. The institution may control your university account, file storage, and issued device. Ownership of particular content and your authority to copy it are separate questions. If you are placed on administrative leave, which the regulations permit for employee respondents while a case is pending, you may lose access without warning.[2] Do not respond to that risk by forwarding everything to a personal account. Some of what sits in a faculty or staff account is not yours to copy: student records, patient information, research data held under an agreement. Copying it can create a second problem. Make a list of what is there and where, and ask your lawyer what you may take.

Students. Preserve relevant messages you lawfully possess and may copy. University email or course systems can contain other people’s protected information; student status does not authorize unrestricted downloading. If access may end, identify needed records and request preservation and an authorized way to obtain them.[3]

Delete Nothing

The urge to delete arrives fast and feels like self-protection. It is the opposite. Deletion is the easiest mistake available to you in the first forty-eight hours, and it can turn a defensible case into an indefensible one.

Deletion means more than pressing delete. It includes unsending a message, editing or removing a post, untagging photos, deactivating or deleting an account, leaving a group chat on a platform that removes your history when you go, wiping or replacing a phone, and throwing away anything physical. It also includes asking a friend to delete something for you.

Here is why it fails.

It rarely works. The complainant probably has a copy of every message you exchanged. So may anyone you sent screenshots to. Messages live in cloud backups, on other devices, and with the companies that carried them. What you destroy is usually your copy, which means you lose the context and keep the risk.

It can create criminal exposure. State evidence-tampering laws have their own definitions and intent requirements. Hawaii, for example, addresses specified alteration or concealment of physical evidence when an official proceeding or investigation is believed pending or about to begin.[4] Whether particular conduct and a particular proceeding satisfy the applicable statute is a question for criminal counsel, not a reason to assume that deleting a record is harmless.

It can lead to court sanctions. Federal Rule of Civil Procedure 37(e) has conditions concerning a preservation duty, loss, reasonable steps, and the inability to restore or replace the information; its most severe measures require intent to deprive another party of its use.[5] Chapter 15 explains the distinction. Do not assume every deletion automatically produces the same sanction.

It becomes the case. Under the 2020 Title IX regulations, the notice you receive in a formal-complaint process must tell you about any code-of-conduct provision prohibiting knowingly false statements or false information in the process.[6] An institution may charge a party with a code violation for a materially false statement made in bad faith during the grievance process, though a finding of responsibility alone is not enough to show one.[7] An account that does not match messages later recovered from someone else's phone is how that charge begins. A deletion can prompt questions about what was lost and why. Its significance depends on the facts and applicable rules; it is not automatically proof of the underlying allegation.

If you have already deleted something, do not try to fix it yourself. Do not recreate it, do not ask anyone else to change their copies, and do not deny it if asked. Tell your lawyer, early and exactly: what it was, when you deleted it, and why. A deletion disclosed to your own counsel on day two is a problem to be managed. A deletion discovered by the other side in month eight is a different kind of problem.

Do Not Contact the Complainant

Not to explain. Not to apologize. Not to ask why. Not to clear the air, check that the complainant is all right, or tell them you are not angry. Not by text, call, email, letter, comment, or a reaction to something she posted. Not once.

And not through anyone else. Not a friend who knows you both, a roommate, a teammate, a fraternity brother, a lab mate, a colleague down the hall, or a parent. Do not ask anyone to find out what the complainant is saying, to pass along a message, or to tell her you are hurt. An intermediary’s contact can itself become evidence, including evidence about whether you requested or encouraged it.

You may hope one conversation will resolve the allegation. Do not rely on that hope to initiate contact. Your intent, the wording used, any applicable restrictions, and the other person’s account can all matter. Consider what each version becomes once someone else is describing it:

That last point has a regulatory edge. The 2020 Title IX regulations prohibit any person, not only the institution, from intimidating, threatening, or coercing anyone in order to interfere with rights under Title IX, or because that person reported, complained, or took part in an investigation or hearing.[8] Contact that you meant as reconciliation can be charged as retaliation, which is a second matter, opened against you, on facts you created after the first one began.

The institution may formalize the line. The supportive measures the regulations allow a school to put in place before any finding include mutual restrictions on contact between the parties.[9] If you receive a no-contact directive, read it closely: who it covers, what counts as contact, where you may and may not be, and how long it lasts. Follow it exactly, even where it seems unreasonable, and raise any objection through your lawyer or advisor rather than by testing it. If you have been served with a protective or restraining order from a court, that is a separate and more serious thing, with its own hearing and its own consequences for violation. Chapter 4 covers it. Read that order tonight.

If the complainant contacts you, do not engage with the substance. Do not argue, explain, or agree with anything about what happened. Do not reply to the message at all unless your lawyer tells you otherwise. Preserve it, and tell your lawyer. Chapter 4 explains why an unexpected message or call from a complainant, asking to talk about that night, deserves particular care.

Witnesses are a separate question. The formal Title IX rule protects the parties’ opportunity to gather and present evidence.[10] Record who may have relevant information and the basis for that belief. When possible, arrange outreach with counsel. Counsel need not personally make every permitted contact, but any plan must comply with applicable orders and avoid pressure, coaching, retaliation, or coordination of accounts. If you lack counsel, ask the investigator or an authorized advisor about a lawful way to identify a witness or submit existing records. Do not use friends to approach the complainant or compare versions of events.

Do Not Explain Yourself, and Do Not Post

You will want people to know your side before they hear hers. Resist it.

Every person you explain yourself to becomes a potential witness to what you said. Do not assume a conversation with a colleague, roommate, teammate, or friend is legally protected. They can be interviewed about it, and what they report will be their memory of your words, compressed and retold, not your words. Repeated retellings create additional accounts of your words. Differences may require explanation later, even when they arose from summaries or misunderstandings. Chapter 19 explains how a careful sentence turns into an admission once someone else is summarizing it. The first days can create statements you later need to explain.

In a formal Title IX grievance process, the institution may not restrict a party’s ability to discuss the allegations or gather and present relevant evidence.[10] If a notice imposes confidentiality restrictions, obtain its text and ask promptly about its scope, authority, and lawful exceptions. Outside Title IX, other law, orders, contracts, and policy still matter. Do not treat every instruction as automatically enforceable or every objection as permission to disregard it. Use the proper route to seek clarification or modification.

The same holds for group chats. A message to six friends is a message to anyone any of them shows it to. Assume every screenshot travels.

You do not need to lie, and you do not need to be cold. You need one sentence: I can't talk about it right now. It is complete. You will say it many times. Chapter 5 covers who to tell, how, and in what order.

Do not post. Not about the case, not about the complainant, not about how you feel, and not the indirect kind of post that everyone who knows will understand. From the moment you were notified, assume that everything you put online will be read by an investigator, a decision-maker, and eventually opposing counsel, and that it will be read in the least generous way available. That includes the photos you post this weekend that have nothing to do with anything.

Making an account private is not the same as deactivating or deleting it, and the latter two are covered above. Ask your lawyer before changing anything.

Faculty and staff. Your chair, dean, or supervisor may need to be told something, particularly if you are placed on leave or removed from teaching. Notifying is not confiding. A notification is short, factual, and ideally reviewed by your lawyer; it contains nothing about the events. Some handbooks and employment agreements require you to report certain things, such as an arrest; check yours before you disclose anything, and ask your lawyer what it requires. Do not discuss the matter with graduate students, postdocs, or staff who report to you. They are in no position to refuse to listen, and they may be witnesses. Do not discuss it on university email, which the institution may access under applicable rules.

Students. The people around you live and eat with you, and some of them will be interviewed. Roommates, teammates, chapter brothers, and the people in your group chats are not a safe audience, however loyal. Before you tell a coach, a residence-life staffer, or an academic advisor anything, find out whether school policy requires them to pass it on. Your parents are a separate question, covered in Chapter 5, and the choice should account for safety, support, privacy, and your autonomy as an adult.

If the Police Call

The call is usually friendly. A detective would like to hear your side. It will only take a few minutes. You are not in any trouble. Most people in your position just want to get it cleared up, and this is the way to do that. Could you come by the station tomorrow?

Do not go without a lawyer. Do not answer "just a couple of quick questions" on the phone. An early interview can affect more than the police investigation. Do not decide that speaking without advice is safe because you believe you have done nothing wrong.

Chapter 4 explains how these interviews run. Three points from it belong here: a voluntary interview may come with no warnings,[11] a detective may tell you things about the evidence that are not true,[12] and going silent may not protect you unless you expressly claim the privilege.[13] How and when to decline is a criminal defense question, which is why the answer is a criminal defense lawyer, not managing the interview yourself.

And there is a fourth, which belongs to this book's subject. What you say to police does not stay with the police. It can surface later in the Title IX file, the human resources (HR) file, a protective-order hearing, and a civil suit, often summarized by someone who was not in the room. Chapter 4 explains how statements move between those tracks. Chapter 19 explains what happens to a careful qualification once it has been summarized twice.

What to do instead. Be polite. Get the detective's name, agency, and number. Say that you will have a lawyer contact them. You do not need to explain why, and you should not discuss the allegations, even to deny them. Do not agree to a time. Requests for your phone, your passwords, or a DNA (deoxyribonucleic acid) sample go to your lawyer as well. Then call a criminal defense lawyer, today, even if you have already hired someone for the campus process; they are different specialties, and Chapter 3 explains the difference. If you cannot reach one tonight, your answer to the detective is still the same: not yet.

Campus police are police. An officer from the university's own department is not part of the Title IX office, and what you say to him is a statement to law enforcement.

If you are arrested, the situation is different and more urgent. Say clearly that you want a lawyer and that you will not answer questions without one, and then stop talking. Chapter 4 covers what follows.

The campus process may not wait for the criminal one. Under the 2020 Title IX regulations, concurrent law enforcement activity is one of the listed grounds on which an institution may grant a temporary delay or a limited extension, with written notice.[14] May is the operative word. Whether to ask, and how, is a question for your lawyers to coordinate.

Write It Down, and Know Who Can Read It

Preserve existing records now. Seek prompt advice before creating a detailed account, especially where criminal exposure is possible. If counsel is unavailable and you choose to record a recollection before it fades, make a dated factual note, distinguish memory from inference, mark uncertainty, and keep it secure. Do not circulate it or assume it is privileged. There is no universal rule to wait a fixed number of days or to write a complete narrative immediately.

If you prepare a recollection note, identify:

How to write it:

That last point is the important one. What you write for yourself is generally not privileged. A journal, a notes app, an email to a friend, a draft you share with your father: none of these is protected merely because it is private or painful. In a later proceeding, they can be requested, and you can be asked about them.

Attorney-client privilege and work-product protection are different. A qualifying confidential communication seeking legal advice may be privileged; material prepared in anticipation of litigation may receive qualified work-product protection. Third-party involvement and disclosure can affect protection.[15] [16] The Title IX rule respects applicable privilege but does not create it.[17] A date, heading, private device, or intention to hire a lawyer is not a guarantee. Chapter 14 applies these limits to notes and chronologies.

Keep any note in a secure location you may lawfully use, separate from institutional systems and shared accounts where practicable. Do not move restricted university records into it. Preserve earlier versions and add separately dated corrections. Ask counsel how to transmit the note and whether protection applies before sharing it further.

If you are a student and your parents will be part of the meetings with your lawyer, ask the lawyer at the start how that affects privilege in your state. The answer varies, and it is better heard before the first meeting than after.

Sleep, Eat, and Tell One Person

This section will look out of place in a chapter about evidence and police. It is here because every instruction above depends on judgment, and judgment is the first thing you lose when you stop sleeping and eating. The decisions in front of you over the next weeks, about which lawyer, how much to spend, and what to say and to whom, are better made rested.

Rest, eat regularly, and seek appropriate support. Avoid decisions or messages made while impaired. Continue work or classes only as permitted by current restrictions and your health needs. Seek a lawful adjustment when attendance is not possible; do not interpret a routine-building suggestion as an instruction to violate a directive or postpone needed care.

Choose a safe person or appropriate professional for support. A partner or parent may help, but is not the right choice in every household. You can explain practical needs without circulating an account of the events. Ask about confidentiality and its limits; do not assume family conversations are privileged. Chapters 5 and 24–26 discuss support without assigning relatives a role in investigating the case.

Consider talking to a professional. A counselor, a therapist, your physician, or, for employees, an employee assistance program. In a Title IX formal-complaint process, the institution may not access, consider, or use your treatment records from a physician, psychologist, or other recognized professional without your voluntary written consent.[18] Other proceedings have their own rules, so ask your lawyer how that applies to you. Seeing someone is not a sign of anything except that you are taking this seriously.

If you are thinking about harming yourself, seek help now. In the United States and its territories, contact the 988 Suicide & Crisis Lifeline by phone at 988, text 988, or use https://988lifeline.org/chat/. If you are in immediate danger, seek emergency assistance.[19]

What Comes Next

Nothing in this chapter wins anything. Its purpose is narrower: to get you to the first meeting with a lawyer with your evidence intact, no new statements on the record, no second matter opened against you, and your judgment still working.

For the next few days, preserve existing records, identify deadlines, and arrange advice. If police have contacted you, or criminal exposure is possible, read Chapter 4 and seek criminal defense counsel promptly. Follow the guidance above before preparing a detailed recollection: consult counsel where possible; if you make notes meanwhile, date them, identify uncertainty, preserve versions, and do not assume privilege. Choose support according to your needs and the confidentiality limits discussed in Chapter 5.

Everything here describes how these processes generally work. It is not advice about your matter, and it cannot be. Your institution's policies, your state's law, whether police are involved, and whether you are a student or an employee all change what you should do, sometimes completely. The person who can tell you what applies to you is your own lawyer. The box that follows is a list to get you to that meeting. Bring it with you.

Appendix A expands this checklist and supplies a record for deadlines and requests.

Preserve

Do not

If police call

If you have a no-contact directive or court order

Before preparing an account

Look after yourself

Questions to bring to your first lawyer meeting

  1. Which processes am I facing, and which carries the most risk right now?
  2. Is what I have written so far protected, and how should I keep writing?
  3. Who can be in the room when we meet, without affecting privilege?
  4. Is there anything in my university accounts I may or should preserve, and how?
  5. Should anyone ask the institution to delay because of a police investigation?
  6. What do I say to my chair, supervisor, coach, or parents, and when?

Endnotes

  1. 34 C.F.R. § 106.45(b)(5)(i) (burden of gathering evidence rests on the recipient).
  2. 34 C.F.R. § 106.44(d) (administrative leave for nonstudent employee respondents).
  3. 34 C.F.R. § 106.44(c) (emergency removal after individualized safety and risk analysis, with notice and opportunity to challenge).
  4. Model Penal Code § 241.7 (tampering with or fabricating physical evidence). For a state statute tracking that wording, see Haw. Rev. Stat. § 710-1076 (tampering with or fabricating physical evidence).
  5. Fed. R. Civ. P. 37(e)(2) (presumption, adverse-inference instruction, dismissal, or default only on a finding of intent to deprive). See .
  6. 34 C.F.R. § 106.45(b)(2)(i)(B).
  7. 34 C.F.R. § 106.71(b)(2), as restored (confirmed against the full restored text, October 26, 2026).
  8. 34 C.F.R. § 106.71(a), as restored (confirmed against the full restored text, October 26, 2026).
  9. 34 C.F.R. § 106.30(a) (definition of supportive measures).
  10. 34 C.F.R. § 106.45(b)(5)(iii).
  11. Oregon v. Mathiason, (1977) (per curiam); see also California v. Beheler, (1983) (per curiam).
  12. Frazier v. Cupp, , 739 (1969).
  13. Salinas v. Texas, 570 U.S. 178 (2013) (plurality opinion of Alito, J.; Thomas, J., concurring in the judgment). See .
  14. 34 C.F.R. § 106.45(b)(1)(v).
  15. Fox v. Alfini, (Colo. Dec. 3, 2018).
  16. Fed. R. Civ. P. 26(b)(3)(A). Most states have an analogue; see, e.g., .
  17. 34 C.F.R. § 106.45(b)(1)(x).
  18. 34 C.F.R. § 106.45(b)(5)(i).
  19. U.S. Gov't Accountability Office, , GAO-26-108114 (July 2026) (988 offers support by call, text, and chat).
← Chapter 1Appendix A →

This is general information, not legal advice. Take the marked-up notice and your questions to a lawyer who knows your jurisdiction and your facts. Full disclaimer.