By Esteban Herrera, Jr.

Several cases over the last few years have dealt with whether litigation hold letters are discoverable. As a review, a litigation hold is a written communication (email, memo, letter) usually from a party’s lawyer or legal department to the party’s employees explaining the existence of a claim or lawsuit and requesting that certain information be preserved. Because the litigation hold usually is prepared by an attorney and sent to the attorney’s client and usually contains the attorney’s thoughts about the nature of the matter and the documents or information that need to be preserved, courts typically find that a litigation hold is privileged and not discoverable. But, as you can see from the caveats in the preceding sentence, if some and/or all of those conditions are not present, a court may find that the hold is NOT privileged. And, the burden on establishing the privilege will be on the party who wants to prevent the litigation hold from being discovered. So, careful thought should go into how a litigation hold communication is worded.

Nevertheless, although a litigation hold itself may be privileged, many courts have found that the facts concerning what a party and its employees are doing to preserve and collect potentially responsive and/or relevant information generally is discoverable. Courts have found that the following facts generally are discoverable:

  • The categories of electronic stored information or documents employees were instructed to preserve and collect;
  • The specific actions employees were instructed to undertake to preserve and collect;
  • When was the litigation hold issued or given; and
  • To whom was the litigation hold issued or given.

Increasingly, document and/or ESI preservation and collection efforts are becoming a large part of lawsuits. Careful effort and attention should be spent on these efforts to avoid having them blow out of control.

Potentially useful citations: Cannata v. Wyndham Worldwide Corp., 2011 WL 5598306 (D. Nev. 2011); Hofmann v. Aspen Dental Management, Inc., 2011 WL 1258053 (S.D. Ind. 2011); Major Tours, Inc. v. Colorel, 2009 WL 2413631 (D.N.J. 2009); In re eBay Seller Antitrust Litigation, 2007 WL 2852364 (N.D. Cal. 2007)