As a general matter, litigation hold letters (also called legal hold letters, litigation hold notices, legal hold notices, and document retention notices) are not discoverable. Most courts that have addressed the issue consider these letters privileged as attorney-client communications or protected by the work-product doctrine. See, e.g., Radiation Oncology Servs. of Cent. N.Y., P.C. v. Our Lady of Lourdes Mem’l Hosp., Inc., 69 Misc. 3d 209 (N.Y. Sup. Ct. 2020); In re eBay Seller Antitrust Litig., No. C 07-01882 JF (RS), 2007 WL 2852364 (N.D. Cal. Oct. 2, 2007); Gibson v. Ford Motor Co., 510 F. Supp. 2d 1116 (N.D. Ga. 2007); see also Paul W. Grimm, Michael D. Berman, Leslie Wharton, Jeanna Beck & Conor R. Crowley, “Discovery about Discovery: Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 Univ. Balt. L. Rev. 413, 420–23 (Spring 2008) (citing cases). Some courts have held that they are not protected by any privilege or as attorney work product but are nonetheless not discoverable because they are irrelevant. See, e.g., Bagley v. Yale Univ., 318 F.R.D. 234, 240 (D. Conn. 2016). Nonetheless, litigants are entitled to inquire into the facts about what steps their opponents took to ensure that all relevant evidence has been preserved. In re eBay Seller Antitrust Litig., 2007 WL 2852364, at *2.
When there has been a preliminary showing of spoliation of evidence, however, courts generally require that litigation hold letters be produced. See, e.g., Radiation Oncology Services, 69 Misc. 3d at 210. Courts likely order production of litigation hold letters in the case of spoliation because an inadequate litigation hold letter is a factor some courts consider when determining whether sanctions for spoliation are warranted. See, e.g., BankDirect Capital Fin., LLC v. Capital Premium Fin., No. 15 C 10340, 2018 WL 1616725, at *3 (N.D. Ill. Apr. 4, 2018). But by the point the parties are litigating over spoliation—as many litigators have experienced—it is too late to do anything to address the inadequacy of the legal hold letter.
Viewing a litigation hold letter as privileged and protected attorney work product makes sense: It is communication between an attorney and a client, it was prepared specifically for litigation, and it contains the attorney’s mental impressions. But see Bagley, 318 F.R.D. at 240 (“the predominant purpose of that communication was to give recipients forceful instructions about what they must do, rather than advice about what they may do”). However, our system of discovery requires, for instance, the plaintiff to define the universe of evidence available to the defendant to defeat the plaintiff’s claims and vice versa. Obviously, each side wants to ensure that the other side has access to the most limited set of information possible, while obtaining for itself the most robust set of information. Because neither side has any input into the contents of the other’s litigation hold letter, it is not possible to ensure that some relevant evidence will be excluded from what is preserved. Further, when something goes wrong and evidence is not preserved, the party whose attorney drafted the instructions for preservation suffers the consequences.
What if litigators were to change these procedures? What if the plaintiff were required to draft the litigation hold letter to be sent to the defendant and the defendant’s employees, and the defendant had to do the same for the plaintiff and its employees? While this would not eliminate all possible claims for sanctions for spoliation, it certainly would vitiate any claim that the hold letter itself failed to require preservation of potentially relevant information.
This method would require the parties to negotiate the breadth of discovery for each side, but that happens anyway in large cases with significant amounts of electronically stored information. No doubt some will argue that having the opposing party draft your litigation hold letter will result in the revelation of that attorney’s mental impressions about the case or telegraph that side’s theory to the other. I do not see this as a big problem. The contents of a litigation hold letter are similar to discovery requests, which, of course, are not privileged: They are expressly directed to the other side. Others may argue that this suggested approach will result in over-preservation. Perhaps. But given the prevalence of discovery disputes about spoliation of evidence, over-preservation seems a small price to pay. Agreeing to preserve information does not vitiate objections to specific discovery requests; and, certainly, it does not transform information into admissible evidence. In cases with gigabytes or terabytes of electronically stored information, a balancing test easily can address any significant additional cost arising from such preservation.
Litigation has reached a point in this county where parties spend more and more time fighting over the fight. As a result, courts are overwhelmed and cases are not resolved for years, sometime decades. Perhaps it is time to consider how to minimize discovery disputes so we can focus on the actual cases? Disclosing litigation hold letters, or negotiating their content from the beginning, could be one step in that direction.
Siobhan Briley is a partner with Pugh, Hagan, Prahm PLC in Coralville, Iowa, and a cochair of the Bankruptcy & Creditors’ Rights Subcommittee of the Commercial & Business Litigation Committee.
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