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Case Law Alert: Court Requires Party to Produce Legal Hold Notices

Created on November 5, 2021

Vice President, E-Discovery

Radiation Oncology Servs. Of Cent. New York, P.C. v. Our Lady of Lourdes Memorial Hosp., Inc. (N.Y. Sup. Ct., Cortland Co., June 9, 2020) showcases the importance of having a defined, repeatable preservation process and specifically highlights how legal teams must focus on creating a defensible legal hold notice.


In this breach of contract case, the plaintiffs requested the court require the defendants to produce their legal hold notices and related data, based upon the plaintiffs’ allegations of spoliation.

In discovery, there was a discrepancy between the physical documents and the electronic data produced. Multiple instances occurred where printed documents were produced, but the electronic versions and related data were not produced by the defendants.

The defendants contended that producing printed documents should suffice and that electronic copies were not needed.


  • Court Grants Plaintiffs’ Request. The court ordered the defendants to produce legal hold notices based on the preliminary evidence that spoliation occurred to specific documents. The additional request for spoliation sanctions was put on hold until after the legal hold was produced.
  • Legal Hold Notices. The judge explained that legal hold notices are usually protected by attorney-client privilege. However, since a preliminary showing of spoliation was made, the court may order production of the legal hold, “because its scope and effect bear directly on the state of mind of the party with control of the destroyed evidence, which is a critical element in determining whether spoliation sanctions are warranted, and, if so, in assessing an appropriate sanction.”
  • No Rebut of Spoliation Claim. The court held that the defendants did not disprove the spoliation claim, because “printing paper copies of the emails and permanently deleting the associated ESI potentially deprived the emails of significant evidentiary value.”

Expert Analysis from Hon. Andrew Peck (Ret.), Senior Counsel, DLA Piper

The most important takeaway from this case is that a paper printout of an email or other ESI is not an acceptable substitute for the original and all its metadata. Second, the defendants failed to provide an adequate explanation here as to why the emails were deleted after they were printed. Third, while I am not sure how a legal hold notice could definitively answer the question of the defendants' state of mind, claims as to the privileged nature of the legal hold memo are weak anyway (as is usually the case).

Case Law Tip

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