The general rule in the United States is that litigation hold notices are not discoverable. Litigation hold or legal hold notices are usually internal letters, memorandum or e-mails directing members of an organization to preserve evidence in support of a litigation hold implemented by the organization related to an event that has triggered the duty to preserve evidence. Two reasons exist for protecting the production of litigation hold notices. One, most notices are issued by an attorney or at the direction of an attorney and contain attorney-client privileged communications or constitute attorney-work product. Two, at least one court has held that disclosure of litigation hold notices “could dissuade other businesses from such instructions in the event of litigation.” Gibson v. Ford Motor Co., 510 F.Supp.2d 1116, 1123 (N.D. Ga. 2007).
In certain circumstances, however, litigation hold notices are discoverable. As a result, it is wise to craft notices with the idea that some day they may be read by a judge or an opponent. The case Major Tours v. Colorel, 2009 U.S. Dist. LEXIS 68128 (DNJ Aug. 4, 2009), is an example of the circumstances that will lead a court to order the production of litigation hold letters. The case contains a good overview of existing law related to the disclosure of litigation hold letters. The case also tells a cautionary tale of things to avoid when implementing litigation holds and conducting 30(b)(6) depositions in support of litigation holds.