We have received several times over the last few days a blast e-mail from an e-discovery outfit advising us that “litigation hold memos” — the documents instructing employees to preserve all relevant documents once litigation is reasonably anticipated — are protected by the attorney-client privilege.
Here’s the key excerpt from that blast e-mail:
“ARE LITIGATION HOLD DIRECTIVES ISSUED BY COUNSEL TO THEIR CLIENT PROTECTED AS PRIVILEGED COMMUNICATIONS OR WORK PRODUCT?
The Courts have held that litigation hold directives issued by counsel to their clients are protected as privileged communications or work product. Gibson v. Ford Motor Co., No. 06-1237, 2007 U.S. Dist. LEXIS 226, at *19-20 (D. Ga. Jan. 4, 2007); Rambus, Inc. v. Infineon Technologies AG, 220 F.R.D. 264 (E.D. Va. 2004).”
Those two cites may be useful, so we’re sharing them with readers of this blog.
On the other hand, we’re less convinced than the folks at CyberControls (who sent the blast e-mail) that the existence of the privilege matters.
Why? Let us count the ways.
(Actually, only two reasons spring to mind.)
First, it’s likely that witnesses will be asked at depositions what they did to preserve documents. Although witnesses may not remember the precise date on which they received a “litigation hold” memo or the precise scope of the litgation hold, the witnesses will remember something. (Indeed, diligent defense counsel will make sure that witnesses remember something, for fear of otherwise being accused of having permitted spoliation of evidence.) After a few witnesses testify about what documents they retained and why, opposing counsel will have a pretty good sense of the contents of the supposedly privileged litigation hold memo.
Second, and perhaps more important, defense counsel is likely to choose to waive any privilege that attaches to a litigation hold memo. If there’s ever a discovery dispute about e-document retention (and those spats are becoming increasingly common), defense counsel is likely to attach the litigation hold memo as Exhibit A to an opposition brief. Although that memo does not by itself prove that the client diligently sought to preserve documents, a carefully written litigation hold memo is a good first step toward proving that your client acted reasonably. Since the defendant is likely to voluntarily make the litigation hold memo public, any privilege that attached to the memo is likely to be waived.
We’re thus pleased to learn that some courts have held litigation hold memos to be protected by the attorney-client privilege. And, by virtue of having written this post, we’ve added the cites to two cases so holding to this little electronic shoebox of case authority. In the end, however, we’re not sure that we care.
Litigation hold memos should be carefully considered and carefully crafted, both to be sure they achieve their purpose and to demonstrate the reasonableness of your client’s conduct. When the reasonableness of that conduct is put in issue in a lawsuit, however, the existence of a privilege won’t make any difference at all.