Discoverability of Litigation Hold Notices and Steps to Implement a Litigation Hold

In Homeland Ins. Co. of Del. V. Independent Health Ass’n., Inc., 2024 WL 4815127 (W.D.N.Y. Nov. 18, 2024), the court ordered production of litigation hold notices and implementation communications.

Homeland Insurance sought a declaratory judgment that it had no duty to defend or indemnify Independent Health Association.  A third-party defendant, Ace Insurance, sought a similar determination. DxID, LLC, was a defendant and/or third-party plaintiff.

In a prior order, “the Court ordered defendants to provide the Court with unredacted copies of five litigation-hold-related documents for in camera review.”

After in camera review, the court ordered production of all five documents without redaction.

The first document was an email from prior defense counsel, Mr. Vilardo, to DxID’s chief technology officer, Mr. Saur.  It was titled “Preservation Requirements.”  The court wrote:

Having reviewed the unredacted copy of this document, the Court concludes that it is not privileged because it merely describes DxID’s document retention practices and offers instructions for document preservation. It is thus not within the scope of attorney-client privilege or work-product protection. [citation omitted].

The second document was an email from DxID to the attorney suggesting that the preservation letter be sent to DxID’s compliance officer.  The court wrote that:  “This housekeeping-type communication, which neither requests nor gives legal advice, is not privileged.”

It added:  “The third document, in which Vilardo agrees to copy that compliance officer, is similar and thus not privileged.”

As to the last two documents, the court wrote:

Finally, Documents 4 and 5—an email from [CTO] Sauer to [attorney] Vilardo, and an email from the Director of Technology at Vilardo’s firm to Sauer—simply clarify points of discussion regarding document preservation based on Vilardo’s letter of July 27, 2012. These documents are thus not privileged because they do not contain legal advice.

Production of the “these five litigation-hold-related documents” was ordered.

See generally:

• Self-Collection, Discovery About Discovery, and Curative Sanctions (Sep. 22, 2024)
• 8 Lessons Learned – Part IV – Disclosure of Recipients of Litigation Hold Notices (May 9, 2024)
• Discovery on Discovery – Steps Taken to Produce Documents (Jun. 14, 2022)
• Discovery of Steps Taken to Implement a Litigation Hold is Permitted (Mar. 16, 2022)
• 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)
• The Honorable Paul W. Grimm, M. Berman, et. al., “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, 454 (2008)
• See Discovery About Discovery – When Was Duty to Preserve Triggered? (Jul. 23, 2024)