Extract from Bryan M. Marra and Melissa Weberman’s article “Ensuring a Secure “Hold”: Balancing Practicality and Privilege in Litigation Hold Notices”
Litigation hold notices are often assumed to be attorney-client privileged or protected under the work-product doctrine. After all, these notices are typically drafted by lawyers and offer legal guidance on preserving evidence. However, recent court decisions have clarified that, while litigation hold notices are generally protected, certain information about such notices may still be discoverable — particularly if spoliation is alleged.
For example, in FTC v. Amazon, Case No. 2:23-cv-01495 (W.D. Wash. July 9, 2024), the court ordered a 30(b)(6) deposition regarding Amazon’s document preservation efforts, including when and to whom hold notices were issued, what data categories employees were instructed to preserve, and what preservation steps they were instructed to take. The FTC had argued that discovery into Amazon’s hold notices was warranted to assess whether spoliation had occurred with respect to ephemeral messaging through applications like Signal.
Similarly, in Doe LS 340 v. Uber Technologies, 710 F. Supp. 3d 794 (N.D. Cal. 2024), the court required Uber to disclose “basic details” about their litigation holds, including the dates of issue and recipients, as well as information about the document sources searched. Plaintiffs argued they needed these details in order to determine whether relevant electronically stored information had been destroyed.
