Discovery of Steps Taken to Implement a Litigation Hold is Permitted

Much has been written about the discoverability of litigation hold notices. Are Litigation Hold Notices Discoverable?,  When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective, and When is a Litigation Hold Notice Discoverable?

The flip side of the coin is whether the steps taken by a potential litigant to implement a litigation hold notice are discoverable.  The argument for discovery is that transparency is a fundamental principle of e-discovery.  The argument against it is that the implementation steps are taken at the direction of counsel and reveal material that is either privileged or protected by work product.  The better view is that implementation steps are discoverable.

In Vasoli v. Yards Brewing Co., LLC, 2021 WL 5045920 (E.D.Pa. Nov. 1, 2021), the court held that “neither the attorney-client privilege nor the work-product doctrine prohibit the disclosure of factual information, the steps that a party took to search for and produce relevant documents are discoverable.” [emphasis added].  The court’s rationale was interesting:

Since communications between opposing counsel are not privileged and the discovery rules direct opposing counsel to communicate with each other when crafting their discovery procedures, it follows that, when counsel follows these rules and conducts discovery correctly, their methods are not necessarily privileged.  It would go against reason to find that the steps a party takes to identify responsive documents are privileged when those steps result in an evasion of discovery obligations by not collaborating on their discovery and ESI search strategies. Such a holding would reward attempts to circumvent the collaborative process envisioned by the discovery rules and would run contrary to their instruction that this kind of gamesmanship should instead be met with sanctions.

There is nothing new about the holding of Vasoli:

It is axiomatic that an opponent may routinely obtain discovery of a client’s actions taken to implement the duty to preserve information. As set forth below, this is no different than the traditional “paper discovery” paradigm of asking a deponent to describe his or her search for responsive paper documents.

It is of no moment that the paper or electronic search was conducted at the direction of counsel. Parties are permitted to inquire into an opponent’s efforts to preserve relevant information through interrogatories and in depositions directed to the opposing client. In the ESI context, this is exemplified by In re eBay Seller Antitrust Litigation.

The Honorable Paul W. Grimm, Michael D. 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, 425–26 (2008)(“eBay stands for the proposition that the steps taken by a client to implement a litigation hold are discoverable, without any showing of need, loss of ESI, or otherwise.”).

In short: “The steps taken by a client to fulfill the duty to preserve information, even if taken in response to privileged communications, have been held to be discoverable, although related attorney communications have not been routinely discoverable.”  Id. at 415.

The law review article was cited and applied in Am. Soc’y for the Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus, 2008 WL 11388433, at *1 (D.D.C. Aug. 5, 2008):  “The parties agree and the authorities support a distinction between asking a witness what data he saved and what specific actions he took to save it and asking the witness what legal advice he received as to those two topics. The former is not privileged, while the latter most often is.”  Accord Casey Auttonberry, Predictive Coding: Taking the Devil Out of the Details, 74 La. L. Rev. 613, 648 n. 85 (2014).