Generally, unless destruction of evidence is at issue, the “litigation hold” letter that attorneys send to clients, explaining the clients’ document preservation obligations, is privileged and may not obtained in discovery. A United States District Court recently had to address exactly how far one party could delve into its opponent’s document preservation efforts (outside of the destruction of evidence context) without crossing into the attorney-client privilege. Basic takeaway: the underlying facts regarding document preservation efforts, like underlying facts of a case, are not privileged.
In Cannata v. Wyndham Worldwide, Corp., the Plaintiff in a sexual harassment case wanted to depose the corporate representative of Wyndham regarding its litigation hold. Wyndham sought to limit such discovery to the identity of persons receiving the hold letter, and what they were instructed to do to preserve evidence. The Plaintiff sought information about when and to whom the hold letters were given, what kinds and categories of electronically stored information (ESI) they were instructed to preserve, and what specific actions they were told to take to that end. The Court found that, while the hold letter itself was privileged, the basic details surrounding the litigation hold were not. The Court noted that the comments to the discovery rules state that the “responding party must also identify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing.” In other words, the Court found that the Plaintiff was entitled to know the full ESI picture: what ESI exists, what ESI was preserved and how, and which ESI was not searched or produced. The Court ordered the parties to use this full ESI picture to create an ESI plan that was reasonable and proportional to the case. Cannata v. Wyndham Worldwide, Corp., Court File No. 2:10-cv-00068-PMP-LRL ( D. Nev. August 10, 2011).