Litigation Hold Notices Not Fully Privileged
Why This Alert Is Important
This ruling emphasizes that certain details of litigation hold notices—such as when and to whom they were issued—are not protected by attorney-client privilege. E-Discovery professionals and legal teams should note the potential obligation to produce such information during litigation.
Overview
This case stems from the death of Martin Vargas Arellano, who contracted COVID-19 while in custody of the US Immigration and Customs Enforcement Agency. The plaintiff, Vargas’s son, filed suit alleging negligence. The dispute specifically revolved around whether the defendant, the United States (USA), was required to produce document retention policies and litigation hold notices related to the decedent’s death.
A preservation notice was issued to ICE shortly after Vargas’s death in March 2021. A separate class action suit filed by detainees at an ICE facility challenged the conditions of confinement during the COVID-19 pandemic in Roman v. Wolf. This case became important, when during a September 2024 "meet and confer," counsel representing the plaintiff (Vargas's son) disagreed with defendant's counsel whether USA should also be considered a party to Roman v. Wolf.
Plaintiff filed a motion to compel defendant to produce documents including document retention policies and legal hold notices issued relating to both Vargas's death and the Roman litigation. The defendant argued that the request for document retention policies was moot and maintained that litigation hold notices were privileged.
Ruling Summary
- Meet and Confer Compliance
Defendant contended that plaintiff failed to comply with the "meet and confer" requirement of FRCP 37, but the court determined the plaintiff had met the requirement in good faith, noting "while plaintiff and his counsel certainly could have addressed this issue more thoroughly, their meet and confer was sufficient at this juncture for the court to decide the matter." USA’s argument that the matter was moot was rejected because of the unresolved dispute regarding the 2020-21 version of ICE’s document retention policies. - Key Details of Litigation Holds Not Privileged
The court noted, in alignment with other courts in its circuit, "while the attorney-client privilege protects litigation hold documents, ‘the basic details surrounding the litigation hold are not.’" Basic details in this case include "(1) when and to whom the litigation hold notices were given, (2) what kinds and categories of information and data [defendant’s] employees were instructed to preserve and collect, and (3) what specific actions they were instructed to take to that end." However - Production Ordered
The court directed the defendant to produce ICE’s document retention policies and portions of the litigation hold notices concerning to the preservation of evidence concerning "(1) when and to whom the litigation hold notices were given; and (2) what kinds and categories of information and data USA instructed to be preserved and/or collected, as well as its document retention policies.”
Prior cases recognize that the litigation hold notice itself is privileged (attorney-client and/or work product) but certain factual details are not protected: who got the hold, when, and what they did to preserve ESI. This case takes it a step further in requiring disclosure of what they were told to preserve and how they were told to do it, which strikes me as privileged. It is best to draft the litigation hold notice carefully in case, as here, the court orders its production.Hon. Andrew Peck (ret.), Senior Counsel, DLA Piper
Case Law Tip
Legal hold notices are an important part of fulfilling your preservation obligations during civil litigation--but they're not everything. Find out what you need to take a holistic approach to preservation in our updated Comprehensive Guide to Preservation.
