In litigation resulting from alleqed discriminatory safety inspections of busses, defendants objected to producing archived e-mail. Defendants moved for a protective order, arguing that retrieving the e-mail would be unduly burdensome and costly. Plaintiffs opposed the motion. The district court determined that a decision on the motion depended, in part, on whether defendants had implemented an adequate litigation hold. In the courts view, whether defendants had deleted e-mail that should have been preserved was a relevant factor in determining whether it would be prohibitively burdensome or expensive to retrieve the archived e-mail.

As a general proposition of law, litigation hold letters are not discoverable, particularly when they include privileged attorney-client communications or material entitled to work-product production. See In Re: E-Bay Seller Anti-trust Litigation, 2007 WL 2852364 (N.D. Cal. 2007). Although there is no automatic right to production of litigation hold letters, a plaintiff is entitled to know what categories of electronically stored information a defendants employees were directed to preserve and collect, and the specific action they were instructed to take to accomplish this.

In Major Tours, Inc. v. Colorel, 2009 WL 2413631 (2009), the Federal District Court held that an exception to the general rule of non-discoverability may be recognized and that the protection of litigation hold letters may be compelled when the party seeking production makes a preliminary showing of spoliation. The rationale is simple, though often overlooked by corporations. Once litigation is reasonably anticipated, routine document retention/destruction policies must be suspended and a litigation hold put in place to ensure that relevant evidence is preserved. Failure to preserve documents for use in pending or reasonably foreseeable litigation, as well as destruction or significant alteration of evidence, constitutes spoliation. A preliminary showing that evidence was spoliated allows discovery of litigation hold letters.

Litigation hold letters or document retention notices are often drafted by counsel and constitute work product. They may also include privileged attorney-client communications. Consequently, they are generally protected from discovery. However, there are limits on the extent of protection. Steps taken to preserve and collect documents and electronically stored information, as well as the types of information to be preserved, are discoverable, even if the specific language of the hold letters or retention notices is protected.

Once litigation is reasonably foreseeable, it is imperative that anticipated parties to the litigation evaluate their document retention policies and litigation hold procedures.

Pat McGrath