Since the inception of Federal Rule 26(b) governing electronic discovery, e-discovery and document production issues continue to become more complex and numerous. The most popular topics include data preservation, records retention policies, production of backup media and tapes, production of mirror images, on-site inspections, keyword searches, format of production, metadata, cost-shifting, and spoliation. Plaintiffs are continuing with their new tactic to request 30(b)(6) depositions immediately upon being allowed to serve discovery. Moreover, included in the initial Requests for Production will undoubtedly be a request for: ALL DOCUMENTS concerning any document retention policy or policies maintained by YOU, including, but not limited to, the policies themselves and any communications regarding the policies and/or changes thereto. Courts have generally allowed these requests and required defendants to produce responsive documents. However, we are seeing a trend for requests that are specific to obtaining legal hold or document preservation notices, including the list of recipients, and for these requests, the decisions are not as clear.

It is well-settled that, as a general matter, document preservation notices are protected from production under the attorney-client privilege and work product doctrine.¹ Also, it has been commonly held that disclosure of document preservation notices and related communications is improper unless there is first a specific finding of spoliation.² In some situations, district courts have found that although a party does not have an automatic right to obtain copies of a defendant’s litigation hold letters, it is entitled “to know which categories of electronic storage information employees were instructed to preserve and collect, and what specific actions they were instructed to undertake to that end.”³

In the seminal discovery matter, eBay Sellers Antitrust,⁴ the court held:

eBay has made an adequate showing that the Document Preservation Notices (DPN) documents themselves include material protected under attorney-client privilege and the work product doctrine. To the extent, however, that eBay is seeking to foreclose any inquiry into the contents of those notices at deposition or through other means, such a position is not tenable. Although plaintiffs may not be entitled to probe into what exactly eBay’s employees were told by its attorneys, they are certainly entitled to know what eBay’s employees are doing with respect to collecting and preserving Electronically Stored Information (ESI). Furthermore, because it would neither be reasonable nor practical to require or even to permit plaintiffs to depose all 600 employees, it is appropriate to permit plaintiffs to discover what those employees are supposed to be doing. Even though such inquiry may, indirectly, implicate communications from counsel to the employees, the focus can and should be on the facts of what eBay’s document retention and collection policies are, rather than on any details of the DPNs. Thus, while plaintiffs should not inquire specifically into how the DPNs were worded or to how they described the legal issues in this action, plaintiffs are entitled to know what kinds and categories of ESI eBay employees were instructed to preserve and collect, and what specific actions they were instructed to undertake to that end.⁵

In the eBay matter, the court further found that eBay had not shown that the identities of the approximately 600 employees receiving the DPNs were privileged or subject to work product protection. The court held that “[a]lthough the relevance of such information appears tenuous, even under the liberal standard applicable in discovery, eBay also has not shown that producing the information would be burdensome or otherwise objectionable. Accordingly, eBay shall provide a list of names and job titles of the approximately 600 employees who received DRNs.”⁶

Plaintiffs are succeeding in obtaining legal hold notices when claims of spoliation are made and initial thresholds of proof are cleared. Although litigation hold notices are privileged, the privilege may be lost upon a preliminary finding of spoliation.⁷ To support an order compelling production of an opponent’s legal hold notice and list of notice recipients, a movant must show the loss or destruction of documents that should have been preserved.⁸ In Tracy v. NVR, Inc., plaintiffs alleged that they were unlawfully denied overtime pay under the Fair Labor Standards Act (FLSA) and New York labor law. The parties disputed the point in time at which the defendant was obligated to preserve documents relating to potential opt-in plaintiffs. The court found that “the potential evidence involved in this case […] provides only indirect information, at best, about the kinds of activities engaged in by [potential] opt-in plaintiffs.”⁹ The court, therefore, denied plaintiffs’ motion to compel, finding that plaintiffs in this case failed to make even a preliminary showing of spoliation.

A different result was reached by the court in Major Tours, Inc. v. Colorel. In that case, plaintiff bus companies alleged that defendant bus inspectors discriminated against African-American bus owners.¹⁰ After the defendants objected to the production of archived e-mail, the plaintiffs moved to compel the production of defendants’ hold notices to convince the court that production of e-mail archives was warranted. The court found that the companies made a preliminary showing of spoliation based on the testimony of the inspectors’ employees and their 30(b)(6) witness. One defendant admitted that he did not save any e-mails, and defendants’ 30(b)(6) witness testified that she did not know what a litigation hold was. Additionally, nearly two years had lapsed between the triggering of defendants’ preservation obligation and the issuance of hold notices, so the court said it was reasonable to infer that some e-mails were lost. The inspectors, therefore, lost the general privilege for the hold notices, and the court ordered the inspectors to disclose the identities of all hold-notice recipients and all portions of the notices referring to preservation issues. The remaining portions of the hold notices were still subject to privilege and work-product protection.

Spoliation was also an issue in Pension Committee.¹¹ Thirteen plaintiffs were sanctioned for conducting “discovery in an ignorant and indifferent fashion.”¹² Plaintiffs had failed to institute timely hold notices. Documents and possible evidence, therefore, were destroyed. Sanctions ranged from monetary fines to a negative-inference instruction: “Courts cannot and do not expect that any party can meet a standard of perfection. Nonetheless, the courts have a right to expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed, and produced to the opposing party.”¹³ The court further cautioned that “parties need to anticipate and undertake document preservation with the most serious and thorough care, if for no other reason than to avoid the detour of sanctions.”¹⁴

The Pension court criticized several plaintiffs for placing “total reliance on the employee to search and select what that employee believed to be responsive records without any supervision from Counsel.”¹⁵ The court noted that “not every employee will require hands-on supervision from an attorney. However, attorney oversight of the process, including the ability to review, sample, or spot-check the collection efforts is important. The adequacy of each search must be evaluated on a case by case basis.”¹⁶

In summary, while we do not have absolute clarity on the issue of whether legal hold notices, and more importantly, the list of recipients who receive the notices, are discoverable, what is clear is that demands to obtain these items in routine discovery requests likely will increase. When drafting these notices, companies should work closely with counsel with an eye to the fact that the notice may be Exhibit A in a motion to the court to push for even more document production demands. Make sure the content and wording of the notice is something the company would feel comfortable with a jury seeing. Additionally, documenting the process of how and why certain recipients received that notice will be helpful if the case goes to trial — months, if not years, later — when memories as to the exact process used to select recipients have faded.

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[1] See Muro v. Target Corp., 250 F.R.D. 350, 360 (N.D. Ill. 2007) (denying plaintiff’s objection to Magistrate’s rul­ing that Target’s litigation hold notices are subject to the attorney-client privilege and to work-product protection as communications of legal advice from counsel to corpo­rate employees regarding document preservation); Tracy v. NVR, Inc., No. 04-CV-6541L, 2012 WL 1067889, at *6 (W.D.N.Y. Mar. 26, 2012) (refusing to compel produc­tion of the defendant’s litigation hold notice sought by plaintiff presumably as part of its assessment of whether a full-blown spoliation motion would be justified); Turner v. Resort Condos. Int’l, No. 03-CV-2025 (DFH), 2006 WL 1990379, at *7-8 (S.D. Ind. July 13, 2006) (accepting the defendant’s assertion that its litigation hold document is privileged and denying the plaintiff’s motion to compel defendant to produce its litigation hold document in dis­covery); see also Gibson v. Ford Motor Co., 510 F.Supp.2d 1116, 1123 (N.D. Ga. 2007) (finding that defendants are not required to produce litigation hold letters because “[n]ot only is the document likely to constitute attorney work-product, but its compelled production could dis­suade other businesses from issuing such instructions in the event of litigation”); Major Tours, Inc. v. Colorel, No. 05-3091, 2009 WL 2413631, at *2 (D.N.J. Aug. 4, 2009); In re eBay Seller Antitrust Litig., No. 07-CV-01882 (RS), 2007 WL 2852364, at *2 (N.D. Cal. Oct. 2, 2007).

[2] See, e.g., Oleksy v. Gen. Elec. Co., No. 06 C1245 1245, 2011 WL 3471016, at *6 (N.D. Ill. Aug. 8, 2011) (holding that production of litigation hold letters and documents relevant to steps taken to institute the hold is appropriate only after a showing that a party failed to preserve certain data); see also United Medical Supply Co. v. United States, 77 Fed. Cl. 257 (Fed. Cl. 2007) (ordering production of defendant’s hold letters only after finding that the defendant spoliated evidence); Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 634 (D. Colo. 2007) (permitting plaintiff to take a Rule 30(b)(6) deposition to explore the procedures defendants’ coun­sel took “to identify, preserve, and produce responsive documents” after finding that defendants expunged the hard drives of several former employees after the present litigation had begun); Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 425 nn. 15-16 (S.D.N.Y. 2004) (disclos­ing the details of counsel’s litigation hold communication after discovery that certain electronically stored informa­tion had not been produced); Keir v. UnumProvident Corp., No. 02-CV-8781 (DLC), 2003 WL 21997747, at *6 (S.D.N.Y. Aug. 22, 2003) (allowing analysis of e-mails pertaining to defendant’s preservation efforts after finding that electronic records which had been ordered preserved had been erased).

[3] See Major Tours, Inc., 2009 WL 2413631, at *2 (citing In re eBay, 2007 WL 2852364, at *2).

[4] In re eBay Seller Antitrust Litig., No. 07-CV-01882 (RS), 2007 WL 2852364 (N.D. Cal. Oct. 2, 2007).

[5] Id., at *2-*3.

[6] Id.

[7] Major Tours, Inc. v. Colorel, 2009 WL 2413631 (D.N.J. Aug. 4, 2009).

[8] Tracy v. NVR, Inc., 2012 WL 1067889 (W.D.N.Y. March 26, 2012).

[9] Id.

[10] Id.

[11] On May 28, 2010, the Pension Committee court amended the previous opinion by clarifying the scope of a party’s obligation to collect records from its employees. Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities LLC, 685 F.Supp.2d 456 (S.D.N.Y. January 15, 2010, amended May 28, 2010); see also May 28, 2010 Order. Specifically, the Judge replaced the sentence “By contrast, the failure to obtain records from all employees (some of whom may have had only a passing encounter with the issues in the litigation), as opposed to key players, likely constitutes negligence as opposed to a higher degree of culpability” with “By con­trast, the failure to obtain records from all those employ­ees who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to key players, could constitute negligence.” No longer does the opinion require collection from all employees, but rather only those with some level of involvement. Additionally, it changes the phrase “likely constitutes negligence” to “could constitute negligence” (emphasis added).

[12] Id. at 496.

[13] Id., at 472.

[14] Pension Committee of the Univ. of Montreal Pension Plan v. Banc of America Securities LLC, No. 05-CIV-9016, 2010 WL 184312, at *10 (S.D.N.Y. January 15, 2010).

[15] Id. at *12.

[16] Id. at *12, n. 68. See also Major Tours, Inc. v. Colorel, No. 05-3091, 2009 WL 2413631, at *2 (D.N.J. Aug. 4, 2009). (“Despite the fact that plaintiffs typically do not have the automatic right to obtain copies of a defendant’s litigation hold letters, plaintiffs are entitled to know which categories of electronic storage information employees were instructed to preserve and collect, and what specific actions they were instructed to undertake to that end.”)

Finis