The question of whether a party may assert privilege over attorney instructions concerning document preservation — including document retention notices (“DRNs”) and communications with employees about document preservation efforts—often arises in situations where the party seeking the protection of privilege is defending against allegations of spoliation – the destruction of evidence. Several courts have recently grappled with this issue with disparate results.  

In In re Intel Corp. Microprocessor Antitrust Lit., 2008WL 2310288, (D. Del. Jun. 4, 2008), the defendant (“Intel”) had hired an independent law firm to handle an investigation into apparent document preservation errors made by Intel employees after the commencement of litigation. As a result of that investigation, Intel and its counsel uncovered several problems, ranging from the failure of some custodians’ email accounts to be migrated to backup tapes, to individual custodians not properly preserving their email according to DRN instructions, to custodians’ general misconceptions concerning the protocol for preservation of electronically stored information. After identifying its preservation problems to the plaintiff and the court, Intel agreed to a stipulated disclosure order under which Intel would provide a “detailed written description of the preservation issues affecting [each of ] the Intel Custodian[s involved], including the nature, scope and duration of any preservation issue(s).” Id. at *5. The plaintiff later moved to compel the production of outside counsel’s interview notes prepared in relation to these summaries.

In an opinion drafted by the Special Master, and adopted in whole by District Judge Joseph J. Farnan, Jr., the court held that, in providing the plaintiff with outside counsel’s summaries of over 1,000 custodian interviews, Intel “placed the accuracy and validity of the information contained in these summaries at issue.” Id. at *12. Rejecting Intel’s argument that it produced the summaries subject to a court order and did not summarize therein any attorneyclient communications or work-product material, the court concluded that Intel was required to produce all of its outside counsel’s interviews and work product, allowing only redactions for “core work product”—that is, material reflecting the thoughts, impressions and advice of counsel concerning the litigation. The court required Intel to disclose the details of the document preservation errors it had uncovered, under the rationale that Intel’s summaries of the preservation mistakes included legal conclusions – namely that the preservation mistakes were based on human error and did not represent deliberate attempts to destroy documents. By making those arguments, Intel had put the content of the underlying attorney notes at issue.

Another recent case from the Northern District of California found that DRNs and other attorney-client communications surrounding document preservation methods were not discoverable, even in the face of an allegation of spoliation. In re eBay Antitrust Lit., 2007 WL 2852364 (N.D. Cal. Oct. 2, 2007). In this case, the district court set limits on the extent to which eBay employees, giving testimony as Rule 30(b)(6) witnesses, could be questioned about DRNs in their depositions. The court concluded that it was permissible for the plaintiffs to inquire about what “employees receiving the DRNs have done in response, i.e. what efforts they have undertaken to collect and preserve applicable information.” Id. at *1. The court acknowledged that such an inquiry might necessarily “indirectly, implicate communications from counsel to the employees” because “plaintiffs are entitled to know what kinds of categories of ESI eBay employees were instructed to preserve and collect, and what specific actions they were instructed to undertake to that end.” Id. at *2. Nevertheless, the employees’ attorneys were not required to produce copies of the DRNs, “nor any information about matters contained therein that are privileged or constitute work product.” Id. at *1. In essence, the court allowed individuals to be deposed about their own actions taken with respect to preservation of ESI, rather than the instructions about the same provided by their counsel.

Finally, the Second Circuit Court of Appeals recently held, in In re the County of Erie, 2008 WL 4554920 (2d Cir. Oct. 14, 2008), that a party did not waive attorney-client privilege by making advice of counsel a defense where actual reliance by the party on that advice was not shown.

Although this case did not directly involve preservation instructions, it is nevertheless important because it provides further guidance on when the attorney-client privilege may be deemed waived, specifically if the advice of counsel has been placed in issue. The case involved a constitutional challenge to the County of Erie’s (“Erie”) strip-search policy for individuals entering detention facilities. The district court ruled that the defendant, Erie, had waived privilege over ten email communications between its attorney and sheriff both when (i) Erie pleaded that its strip-search policy was lawful, and (ii) a sheriff ’s office employee testified at his deposition that Erie’s attorney’s office was involved in re-writing that policy.

The Court of Appeals reversed that determination, holding that Erie’s assertion of lawfulness of its policy coupled with the fact that its attorney participated in re-writing the policy did not demonstrate that Erie had in fact relied on legal advice in setting county policy. At a deposition,

Erie’s attorney had objected to and blocked disclosure of the principal substance of the email, and nothing in the record otherwise indicated that Erie was relying on a defense of advice of counsel or good faith that would effectively waive attorney-client privilege. Accordingly, the Second Circuit reversed the lower court and held that the privilege was not waived.

As these cases illustrate, when a party defends against charges of spoliation by an adversary, DRNs and other attorney communications regarding preservation may not necessarily be privileged. Counsel should be advised to take care in drafting preservation related communications as a court may ultimately force their production during litigation.