When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective.

Much has been written about discoverability of litigation hold notices.  See Blog, “When is a Litigation Hold Notice Discoverable?” (citing authorities).

In March, the court in Thomas v. Cricket Wireless, LLC, 2021 WL 1017114, at *1 (N.D. Cal. Mar. 16, 2021) (“Cricket II”), wrote:  “This matter is back before the undersigned on plaintiffs’ renewed request to compel defendant Cricket Wireless, LLC to produce its litigation hold letters and related correspondence.”

In Cricket I, 2020 WL 7344742 (N.D. Cal. Dec. 14, 2020), the court denied a request to order production of defendant’s litigation hold notices and followed defendant’s “deposition first” plan.  Defendant argued that, before production of the litigation hold notices could be ordered, plaintiffs had to conduct Rule 30(b)(6) depositions to find out what had and had not been done to preserve and collect responsive ESI.

The Cricket I court agreed and ordered depositions first.  However, it also said: “Now, if the witness doesn’t answer [the questions], then I think that builds a stronger case for [plaintiffs]; that the only way [plaintiffs] are going to get this information contained in this [litigation hold notice].”

Cricket II arose after those depositions.  Plaintiffs showed that defendant’s Rule 30(b)(6) designee failed to answer the questions.  In fact, the court agreed with plaintiffs that there were “numerous places in both depositions where [defendant’s] witnesses could not or would not answer questions specifically seeking ‘basic details’ surrounding the hold letters that the Court outlined in its prior order.”  Id. at * 4.

Given that Cricket admitted to the destruction, and in light of the deposition testimony, “the only way plaintiffs will get the information” was to order production of the litigation hold notices.  The court offered in camera review to redact any unrelated privileged information in the notices. Id. at *6.

While there may have been good reasons for instructing the Rule 30(b)(6) deponents not to answer questions, it appears that the incomplete Rule 30(b)(6) testimony led directly to the order to produce litigation hold notices.  Defendant, having argued for a deposition-first plan, then produced a corporate designee who the court found did not adequately respond.

The risk that hold notices will be disclosed has long been recognized:

In today’s practice, counsel and their clients are well advised to think early and often about the potential for discovery on discovery. Especially in the highly complex world of e-discovery, even with good faith efforts, it is very easy to fail to preserve or lose relevant information by inadvertence. Even the inadvertent loss of relevant data may lead to probing questions into the conduct of counsel and client before a court resolves a sanctions motion.

For this reason, counsel and client should be aware, when drafting preservation documents and engaging in implementation discussions, that those documents and discussions may voluntarily or involuntarily be presented to a court for review in connection with a spoliation motion. Prudence suggests, for example, that litigation hold letters should not contain surplus tactical and strategic discussions, and should be no more expansive than necessary to effectively accomplish the preservation task. It may be advisable to circumscribe preservation discussions and segregate notes regarding the implementation of preservation efforts from substantive communications involving the merits of the dispute. Additionally, all participants in the adversary process need to consider the probability that, even absent a preliminary showing of breach of the duty to preserve, the steps taken by a client to preserve information are likely discoverable, and that discovery may indirectly disclose some information regarding attorney-client communications….  Certain facts–such as what steps a litigant took, or failed to take, to preserve material–should be deemed routinely discoverable. Other facts, such as the contents of a litigation hold letter, and attorney-client implementation discussions, should require a greater showing to support disclosure. Actual legal advice, if disclosable at all, should be discoverable only upon a more compelling showing and, perhaps, after in camera review. Although, where there is evidence of a breach of the duty to preserve, there are multiple bases for seeking discovery of some attorney-client preservation communications, the least problematic approach is to assert that implementation communications are unprivileged, compelled exchanges that are only conditionally relevant.

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) (Emphasis added).

Crickett II was decided on rather unique facts – admitted destruction and a failure to explain.  There are several take-aways:

• Faced with a preliminary showing of spoliation, litigation hold notices are discoverable;
• Litigation hold notices should be narrowly drafted due to the possibility that they must be disclosed;
• Counsel should plan for discovery-of-discovery and be prepared to justify the steps taken to implement a defensible litigation hold.

The Cricket II court also rejected Cricket’s assertion that it did not have a duty to preserve the information when it was destroyed.  That will be the subject of a separate post.