Legal Holds and Trigger Events

Court Orders Production of Litigation Hold Letters

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.

Court Orders Production of Notes Relating to Custodian Interviews Conducted by Attorneys

The court in In re Intel Corp. Microprocessor Antitrust Litig., 2008 WL 2310288 (DDel 6/4/08) deemed defendant Intel waived privilege protection due primarily to defendant's willingness to make records related to custodian interviews avaialble to avoid worldwide depositions of custodians.

The Special Master ruled that Intel had waived work product protection, noting that Intel had agreed to produce, “detailed written description[s] of the preservation issues affecting [every] Intel Custodian, including the nature, scope and duration of any preservation issue(s).” The Special Master continued:

"Intel could have left AMD and the Class Plaintiffs to their own devices, forcing them down the path of protracted world-wide preservation depositions. It did not. Rather it trumpeted its willingness to have AMD, the Class Plaintiffs and the Court informed as to fact work-product gathered and provided “a detailed written description of the information provided by each custodian [to Weil] during the interviews."

Therefore, the Special Master concluded that Intel could not “mask” its agreed-to discovery of custodian information by asserting work product protection with respect to fact work product which, in the Special Master’s view, was at the heart of Intel’s position on its preservation issues.

For the case summary and a link to the decision see here: http://tiny.cc/LeMwF