As electronic discovery has become more prevalent and voluminous, national standards for the preservation of evidence have evolved dramatically in the past decade. Through a proliferation of electronic discovery orders involving discovery compliance, courts have addressed when the duty to preserve evidence arises, signifying a party’s duty to issue a “litigation hold.” Courts have not answered, however, whether a party can withhold documents generated before issuing a litigation hold on the basis of work product protection. Both the duty to preserve evidence and the work product doctrine require the “anticipation of litigation.” Thus, can a party anticipate litigation for purposes of asserting work product protection before it anticipates litigation for purposes of issuing a litigation hold?

This new issue surfaced in an Indiana state case in Marion County Superior Court, where both parties withheld the production of thousands of documents on the basis of the work product doctrine. In its motion to compel, the defendant argued that its opponent could not have created or exchanged certain documents in anticipation of litigation because the documents were created prior to the issuance of a litigation hold. Citing federal authority requiring a party to issue a litigation hold once it anticipates litigation, the defendant reasoned that its opponent could not have anticipated litigation before issuing the litigation hold and, therefore, all the documents created or exchanged before the issuance of a litigation hold were not entitled to work product protection. If a party cannot withhold documents generated before issuing a litigation hold on the basis of work product, the consequences for failing to issue a timely litigation hold will be significantly greater. The repercussions for failing to issue a litigation hold will not only include sanctions for spoliation of evidence for the documents that are not preserved but will also include the loss of work product protection over documents that were preserved and withheld. If this legal proposition develops into federal case law, it would likely encourage counsel and clients to reexamine policies and standards on issuing litigation holds in order to preserve the undoubtedly valuable work product protection.

The Work Product Doctrine

Work product is a concept involving the work prepared by a party or attorney “in anticipation of litigation or for trial.” Fed. R. Civ. P. 26(b)(3). Under the federal work product rule, as codified in the Federal Rules of Civil Procedure, a party may obtain discovery of documents that were prepared in anticipation of litigation only upon showing substantial need and the inability to obtain the substantial equivalent of the materials by other means without undue hardship. Fed. R. Civ. P. 26(b)(3). A state’s rules may vary from the federal model in providing that  work product is absolutely immune from disclosure, but many state work product rules mirror the federal rule. See, e.g., Ind. Tr. R. 26(B)(3); Oh. Civ. R. 26(B)(3). Although sometimes classified as a privilege, the work product rule establishes a qualified immunity from discovery, which a requesting party may overcome only with the requisite showing. See, e.g., Kandel v. Bro. Intern. Corp., 683 F. Supp. 2d 1076, 1083 (D. Cal. 2010). When a requesting party has achieved this showing, a court must protect against the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of the disclosing party concerning the litigation in ordering discovery of trial preparation materials. Fed. R. Civ. P. 26(b)(3).

Although almost all of the work that attorneys do and the advice that they dispense may be viewed as being “in anticipation of litigation” or avoiding it, work product protection requires a strong showing that litigation was more than a remote possibility. Rexford v. Olczak, 176 F.R.D. 90, 91 (W.D.N.Y. 1997). Work product protection requires a substantial probability that litigation will develop and that it will begin imminently, or at least that a party reasonably anticipates it. William A. Gross Const., Assoc., Inc. v. Am. Mfrs. Mut. Ins. Co., 262 F.R.D. 354, 362 (S.D.N.Y. 2009). However, the fact that litigation eventually arises does not in and of itself cloak materials prepared by an attorney with work product protection. Tellabs Operations, Inc. v. Fujitsu Ltd., 283 F.R.D. 374, 388 (N.D. Ill. 2012). The work product doctrine generally will not protect documents prepared in the ordinary course of business before litigation commences. Lindley v. Life Investors Ins. Co. of Am., 267 F.R.D. 382, 394 (N.D. Okla. 2010). Preparing a document in the ordinary course of business that a party knows may be useful if litigation arises will not meet the “anticipation of litigation” requirement. La. Mun. Police Employees Ret. Sys. v. Sealed Air Corp., 253 F.R.D. 300, 307 (D. N.J. 2008).

The work product doctrine was developed to prevent a possible adversary from gaining an unfair advantage by acquiring documents prepared in anticipation of litigation that may expose the preparing party’s strategy or evaluation of the strengths and weaknesses of its case. It prevents parties from taking advantage of a free ride on their opponents’ investigative efforts in the course of litigation. In the seminal case on work product protection, Taylor v. Hickman, the United States Supreme Court stated that “proper preparation of a client’s case demands that [the attorney] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his theories and plan his strategy without undue and needless interference.” Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 393 (1947). This purpose was further clarified through legal scholarship:

The central justification for the work product doctrine is that it preserves the privacy of preparation that is essential to the attorney’s adversary role. Any invasion of this privacy could distort or modify the attorney’s function to the detriment of the adversary system. Commentators and courts agree that the function of work product immunity is to preserve the benefits of adverse representation without frustrating the goals of open discovery. A secondary rationale, sometimes proposed as an independent justification for the doctrine, emphasizes the need to protect the privacy of the attorney’s mental processes.

Note, The Work Product Doctrine, 68 Cornell L. Rev. 760 (1982–83).

Work product protection may be waived. Most courts hold that both the client and the lawyer may waive the work product protection. S.N. Phelps & Co. v. Circle K Corp., 199 B.R. 92, 99 (Bankr. S.D.N.Y. 1996). Generally, waiver of work product protection occurs when the covered materials are used in a manner that is inconsistent with the protection. Lindley v. Life Investors Ins. Co. of Am., 267 F.R.D. 382, 394 (N.D. Okla. 2010). Thus, disclosing work product to an adversary normally waives work product protection. However, unlike attorney-client privilege, disclosing work product to third parties does not automatically waive work product protection. Viacom, Inc. v. Sumitomo Corp., 200 F.R.D. 213, 221 n.6 (S.D.N.Y. 2001). Disclosing work product to a third party other than an adversary waives protection only if the disclosure makes it likely that the work product will fall into the adversary’s hands. In re Doe, 662 F.2d 1073, 1081–82 (4th Cir. 1981). In such situations, courts frequently conduct a fact-intensive analysis of whether the disclosure of the work product makes it more likely that the adversary will acquire access to that work product. Verschoth v. Time Warner, No. 00 CIV 1339, 2001 WL 546630 (S.D.N.Y. May 22, 2001).

The Duty to Preserve Evidence

Litigants owe an “uncompromising duty to preserve” what they know or reasonably should know will be relevant evidence in a pending lawsuit even without a discovery request or order to preserve the evidence. The duty to preserve evidence exists when a party “is on notice that documents and information in its possession are relevant to litigation, or potential litigation, or are reasonably calculated to lead to the discovery of admissible evidence.” Bayoil, S.A. v. Polembros Shipping Ltd., 196 FRD 479, 482 (S.D. Tex. 2000). Courts have used different phrases in explaining the test for potential litigation, including “anticipated,” “likely,” and “probable.” See Silvestri v. Gen. Motors Corp., 271 F3d 583, 591 (4th Cir. 2001) (“anticipated”); Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 621 (D. Colo. 2007) (“likely”); In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1068 (N.D. Cal. 2006) (“probable”).

A useful and frequently cited example for determining when a duty to preserve evidence begins is found in a series of opinions issued by United States District Court for the Southern District of New York in Zubulake v. UBS Warburg, LLC, 220 F.R.D 212 (S.D.N.Y. Oct. 22, 2003) (sometimes referred to as “Zubulake IV”). The court held that once a party “reasonably anticipates” litigation, it must suspend its routine document retention and destruction policy and implement a litigation hold to ensure the preservation of relevant documents. Zubulake IV, 220 F.R.D at 218. In Zubulake IV, the court stated that the duty to preserve evidence arose “at the latest” when Zubulake filed her employment discrimination claim. However, the court also noted that the duty to preserve may have arisen earlier. Specifically, USB employees exchanged e-mails regarding possible litigation with the plaintiff months before the plaintiff, Zubulake, filed her charge. While the court recognized that merely contemplating a lawsuit was not enough to warrant a duty to preserve, the e-mails at issue were labeled with an attorney-client privilege label and sent to “the relevant people.” Accordingly, the court decided that USB reasonably anticipated litigation and the duty to preserve documents began when the e-mails at issue were exchanged.

Courts analyze cases individually to determine when a party reasonably knew or should have known that future litigation was likely thus activating the duty to preserve evidence and issue a litigation hold. See, e.g., In re NTL, Inc. Sec. Litig., 244 F.R.D. 179, 193 (S.D.N.Y. 2007) (holding that the duty to preserve evidence was triggered by a prelawsuit internal memo referencing the heightened risk of litigious activity); In re Kmart Corp., 371 B.R. 823, 844 (Bankr. N.D. Ill. 2007) (stating that an administrative claim containing sufficient information to put Kmart on notice that litigation was likely triggered Kmart’s duty to implement a litigation hold); E*Trade Sec. LLC v. Deutsche Bank AG, 230 F.R.D. 582, 588–89 (D. Minn. 2005) (holding that defendants’ duty to preserve relevant information commenced when they received notice that a bankruptcy court was investigating an alleged scheme). Cf. Cache LaPoudre Fees, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614 (D. Colo. 2007) (holding that defendant’s duty to preserve evidence was not triggered by prelawsuit correspondence from plaintiff’s counsel that did not threaten litigation but instead raised the possibility of nonlitigious resolution of alleged claim); AAB Joint Venture v. United States, 75 Fed. Cl. 432, 442 (Fed. Cl. 2007) (stating that defendant’s duty to preserve evidence was not triggered by correspondence that did not apprise the defendant the requisite certainty of litigation or of the scope of the claims).

Violation of the duty to preserve evidence is known as “spoliation.” See Kronisch v. United States, 150 F.3d 112, 130 (2nd Cir. 1998); Sensonics, Inc. v. Aerosonic Corp., 81 F.3d 1566, 1575 (Fed. Cir. 1996); Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001). Spoliation is the destruction or significant alteration of evidence or failure to preserve evidence in pending or reasonably foreseeable litigation. United Med. Supply Co. v. United States, 77 Fed. Cl. 257, 263 (2007). The court in United Medical Supply noted that “[s]poliation may result in a variety of sanctions, with ‘the oldest and most venerable remedy’ being an ‘adverse inference,’ under which the finder of fact may infer that the destroyed evidence would have been favorable to the opposing side.” Id. at 263.

Work Product Protection Activation Generates a Litigation Hold Duty

Ultimately, the work product doctrine and the duty to issue a litigation hold notice turn on whether a party reasonably anticipates litigation. Therefore, the two doctrines are intrinsically intertwined. A number of federal courts, recognizing the relationship between the two doctrines, have held that once a party anticipates litigation activating work product protection, the party has an affirmative obligation to preserve evidence. See PacifiCorp v. Nw. Pipeline, 879 F. Supp. 2d 1171 (D. Or. 2012); Sinai v. State Univ. of N.Y. at Farmingdale, No. CV09-407, 2010 WL 3170664 (E.D.N.Y. Aug. 10, 2010); sanofi-aventis Deutschland GmbH v. Glenmark Pham. Inc., USA, No. 07-CV-5855, 2010 WL 2652412 (D. N.J. Jul. 1, 2010). See also Medeva Pharma Suisse A.G. v. Roxane Lab., Inc., No. 07-5165, 2011 WL 310697 (D. N.J. Jan. 28, 2011).

In PacifiCorp v. Nw. Pipeline GP, the defendants sought sanctions against the plaintiff for spoliation of evidence. 2012 WL 2903976, at *11. At issue in PacifiCorp was various shutdowns of a natural gas power generation plant allegedly caused by compressor oil in the gas supply that contaminated the generator turbines. Id. at **3–6. The plaintiff testified that it first became aware that the damage was due to the contamination in July 2007. Therefore, the defendants argued that the plaintiff reasonably anticipated litigation in July 2007 and had an obligation to preserve evidence. Id. at *12. The plaintiff argued that its duty to preserve evidence arose on October 9, 2007, the date that it retained outside counsel.

Before filing a motion for spoliation sanctions, the defendants filed a motion to compel the production of documents from the plaintiff. Id. at *13. In its memorandum in opposition, the plaintiff took the position that e-mails and other documents created after August 2, 2007, were immune from production because the work product doctrine protected them. Id. The plaintiff argued that documents created after August 2, 2007, were created in anticipation of litigation. Id. The court held that the plaintiff was judicially stopped from taking the position that documents were entitled to work product protection before the plaintiff had a duty to preserve evidence. The plaintiff reasonably anticipated litigation by August 2, 2007, and, therefore, its duty to preserve all relevant evidence began on August 2, 2007.

In Siani v. State Univ. of N.Y. at Farmingdale, the U.S. District Court for the Eastern District of New York held that if litigation was reasonably foreseeable “for work product purposes,” it was reasonably foreseeable for the defendants’ “duty to preserve purposes.” 2010 WL 3170664, at *5. The plaintiff in Siani filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC) on June 27, 2008. The defendants argued that they became obligated to preserve evidence when the plaintiff filed with the EEOC. The plaintiff countered that the defendants were put on notice of his age discrimination allegations in January 2008, the defendants retained outside counsel in early 2008, and the defendants claimed work product protection on documents dated as early as February 2008. Id. at *5. The court found that the duty to preserve evidence arose at the same time that the work product privilege became available to the defendants. Id. The court ultimately refused to impose an adverse inference for documents destroyed between February 2008 and July 2008 because the plaintiff could not show that the documents were relevant to the plaintiff’s claims. Id. at *9.

That was not the case in sanofi-aventis Deutschland GmbH v. Glenmark Pharm. Inc., USA. In sanofi-aventis, the U.S. District Court for the District of New Jersey held that an adverse inference was appropriate because the defendant claimed that the work product doctrine applied during a particular time period but failed to issue a corresponding litigation hold or otherwise preserve e-mail communications from that time. 2010 WL 2652412, at *5. sanofi-aventis was a patent infringement case over the filing of a Paragraph IV certification. The defendants asserted that the work product doctrine protected certain documents dated February 23, 2006, and later. Id. at *1. But the defendants failed to issue a litigation hold notice until June 26, 2007. Id. Because the defendants anticipated litigation as early as February 23, 2006, they had an obligation to issue a litigation hold notice no later than February 23, 2006. Id. at *5. The defendants’ failure to do so alone was sufficient for the court to grant an adverse inference that all documents destroyed during that 16-month period “might or would have been unfavorable to the position of the” defendants. Id. at *4–5.

Although only a few cases address the issue, the precedent is set: if the work product doctrine applies to a particular time period, then a party has an affirmative duty to issue a litigation hold or otherwise preserve relevant evidence from the period. And, in fact, it makes sense. If a party reasonably anticipates litigation to the extent that it creates communications and documents in anticipation of that litigation, then the party has a duty to preserve evidence related to the potential litigation. The penalty for failing to preserve the evidence will vary depending on the jurisdiction, ranging from none at all to dismissal of a lawsuit and monetary damages.

Does Invoking Work Product Protection Depend on a Properly Timed Litigation Hold

The authors have not uncovered published opinions in which a court has ordered the production of documents despite a claim of work product protection when the protection claiming party failed to issue a litigation hold notice. Yet some parties seeking material withheld on work product grounds will argue that failing to issue a litigation hold indicates that the withholding party did not anticipate litigation so the withheld material cannot have work product protection. In addition to the Indiana state case, the authors found only one other case in which a party attempted to make this argument, although the court viewed it as baseless:

Lockheed makes a blanket assertion that the absence of a litigation hold indicates that MTA did not anticipate litigation. This contention is without basis and Lockheed cites no authority in support of it. If the nature of the communications are such that, but for the prospect of litigation, the material would not otherwise have been made, then the material in question is—by definition—work product, notwithstanding the issuance of a notice issued within the corporation to preserve documents. . . . [T]here is neither authority nor logic backing Lockheed’s assumption that issuance of a notice is a pre-requisite for establishing that a given document was created in anticipation of litigation.

Lockheed Martin Transp. Sec. Solutions v. MTA Capital Constr. Co., Nos. 09 CV 4077, 09 CV 6033, 2011 WL 8197601, at *29 (S.D.N.Y. Jul. 28, 2011) (internal citations omitted). Yet, if successful, this argument could have serious implications for everyone involved in litigation, but particularly for corporations. Imagine this scenario: a manufacturer managing a recall begins preparing for the inevitable onslaught of litigation but only issues a litigation hold notice after a plaintiff files the first lawsuit. Following the logic of the defendant in the Indiana state case, plaintiffs could discover all of the documents created by the manufacturer and its counsel before the manufacturer issued a litigation hold prepared for litigation unless the manufacturer could establish that the attorney-client privilege covered it. On the other hand, as discussed below, it seems unlikely that a court would hold that a party waived the work product doctrine by failing to issue a litigation hold notice.

The work product doctrine affords an inherent, qualified privilege to all parties in litigation. To claim the benefits of work product immunity does not require taking affirmative steps. Rather, once a potential litigant reasonably anticipates litigation and prepares documents or exchanges e-mails in anticipation of the litigation, the privilege applies. The work product doctrine preserves the duties that attorneys owe to clients and clients’ legal interests. Consequently, the only way to waive work product protection is to use the covered materials in a manner inconsistent with their protection. Essentially a party waives the work product doctrine only by actively disclosing the privileged information or documents.

Therefore, the reasoning of the defendant in the Indiana state case has an intrinsic flaw. By arguing that a party waives protection under the work product doctrine by failing to issue a litigation hold notice or otherwise preserving evidence, the party’s failure to act would waive the protection. Failing to ensure the preservation of evidence does not result in the use of materials that would otherwise be covered by the work product doctrine. A failure to issue a litigation hold notice does not result in the waiver of the work product doctrine.

Underlying Policy Considerations

The work product doctrine developed partly to shield an attorney’s trial preparation from an opponent’s discovery and to protect a client’s legal interests. An attorney would have less incentive to perform the diligent investigation and research necessary to represent a client adequately if an opponent could simply benefit from the attorney’s efforts through discovery. If an opponent could discover documents prepared by an attorney anticipating litigation merely because the attorney’s client negligently failed to issue a litigation hold, it seems likely that trial preparation quality would decline.

The purpose of requiring a litigation hold when a party anticipates litigation is to preserve evidence that may be relevant to that litigation. A party anticipating litigation already has an incentive to preserve evidence in the moment because sanctions already exist to penalize the party’s failure to issue a litigation hold. In most jurisdictions, the intentional spoliation of evidence relevant to a case raises an inference that the evidence would have been unfavorable to the party responsible for the spoliation. Union Pac. R.R. Co. v. Barber, 149 S.W.3d 325 (Ark. 2004); Morris v. Buchanan, 44 N.E.2d 166 (Ind. 1942). Moreover, a party seeking an adverse-inference instruction or other sanctions for evidence spoliation must establish the following elements: (1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence destroyed with a culpable state of mind; and (3) the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004). Accordingly, a court properly may impose an instruction regarding evidence spoliation only when a party has deliberately destroyed evidence, and often  a court will not make one available when the party merely negligently failed to issue a litigation hold. Thus if courts generally do not impose adverse inference instructions when parties fail to issue litigation holds,  it seems much too heavy handed to revoke work product protection for the same failures.

Conclusion

Since the duty to preserve evidence and work product protection both require the “anticipation of litigation,” it may seem logical to prohibit a party from withholding documents on the basis of work product that it generated before issuing a litigation hold. However, as discussed, it would violate the policy considerations underlying both work product protection and the duty to preserve evidence to revoke a party’s work product protection for the negligent failure to issue a litigation hold notice. Thus, although the Indiana state case presents a compelling argument that could strengthen the incentives to promptly issue a litigation hold, the ways that work product protection supports the legal system outweigh the ways a party’s failure to preserve evidence might destabilize the system.