Discovery of Litigation Hold Notices Ordered

In U.S. EEOC v. Aspire Regional Partners, Inc., 2025 WL 1115300 (S.D. Oh. Apr. 15, 2025), the court ordered discovery of litigation hold notices.

In my opinion, and while I agree with the result, the legal issues governing the discovery of litigation hold notices and implementation need clarity and national uniformity.

In Aspire, Mr. Ayers-Banks asserted discriminatory termination by his former employer.  He filed a charge of discrimination and the EEOC subsequently brought suit on his behalf.

The defendants told the EEOC that Mr. Ayers-Banks’ email account was deleted six months after he filed his charge with the EEOC.  The defendants’ email was administered by a third-party.  The EEOC served a subpoena on the third-party custodian.

EEOC’s fifth request to the third-party was:

Produce all communications that you sent or received relating to the duty to preserve information for case EEOC v. Aspire Regional Partners, Inc., et al., 2:22-cv-03071 (S.D. Ohio), including any litigation hold letters, all communications with the named Defendants in the case, any communications with any attorney(s) representing Defendants, and any communications discussing the accounts of former Northwood facilities’ employee Anthony Ayers-Banks, Dashae Marie Hooper, James Jordan, J.D. Overman, Karen Moore, Jessica Link, or Jason Cooper.

Defendants filed a motion to quash, asserting attorney-client privilege.  They did not submit a privilege log or request in camera review.

The U.S. Magistrate Judge denied relief and the matter was before the District Judge on objections.

In overruling the objections to the order denying the motion to quash, the court wrote that:

Although litigation-hold letters are generally privileged and not discoverable, if a party makes a preliminary showing of spoliation, a court may order production of the litigation hold letters….  To make a preliminary showing of spoliation, the party claiming spoliation must show (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the accused party destroyed the evidence with a culpable state of mind; and (3) the evidence destroyed is relevant to the other side’s claim or defense. [Emphasis added].

Defendants did not contest the EEOC’s preliminary showing of spoliation.  The deletion appeared to have occurred in March 2021; however, the duty to preserve had been triggered in October 2020 by the filing of the charge with the EEOC.

Deletion of the email was in the ordinary course of business, which provided for deletion after 180 days of inactivity.  The court reasoned that negligent deletion in the ordinary course of business was a sufficiently culpable state of mind.

Further, defendants did not contest that the deleted information was relevant.  Defendants claimed that the deleted information “should exist” in other preserved accounts.  The court wrote that: “Although emails from Mr. Ayers-Banks could exist in the accounts of other individuals, if any of those individuals permanently deleted emails that Mr. Ayers-Banks sent to them during his employment, those emails are now inaccessible.”

The Aspire court held that a litigation hold notice was privileged; however, based on a preliminary showing of spoliation, it was discoverable.

In Another Approach to Drafting and Discovery of Litigation Hold Notices (Feb. 21, 2025), I suggested what I consider a better solution based on a law review article that I co-authored with the Hon. Paul W. Grimm (ret.) and others. “Discovery About Discovery:  Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?,” 37 U.Balt.L.Rev. 413 (2008).

In that blog, I referred to  8 Lessons Learned – Part IV – Disclosure of Recipients of Litigation Hold Notices (May 9, 2024); Are Litigation Hold Notices Discoverable? (Mar. 5, 2022);  When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective (Aug. 9, 2021);  When is a Litigation Hold Notice Discoverable? (Dec. 1, 2020); and, Discovery of Steps Taken to Implement a Litigation Hold is Permitted (Mar. 26, 2022); Discovery on Discovery – Steps Taken to Produce Documents (Jun. 14, 2022).

UPDATE:  See D. Austin, Portions of Litigation Hold Notices Not Privileged, Court Rules (Feb. 11, 2025), discussing  Vargas v. U.S., No. 5:23-cv-00380-JWH-SPx (C.D. Cal. Nov. 6, 2024).  “Multiple courts in this circuit have held that while the attorney-client privilege protects litigation hold documents, ‘the basic details surrounding the litigation hold are not.’…’These basic details include (1) when and to whom the litigation hold notices were given, (2) what kinds and categories of information and data [defendant’s] employees were instructed to preserve and collect, and (3) what specific actions they were instructed to take to that end.’”