Privilege, Work Product and Litigation Holds: Part II

December 4, 2019

Last week’s Privilege Point described a court’s understandable decision not to address an attorney-client privilege claim when a defendant had successfully claimed work product protection that the plaintiff could not overcome. 

The work product doctrine can protect documents created when the holder is in or reasonably anticipates litigation.  Some courts reason that the mental state providing that protection also triggers the requirement to preserve pertinent documents.  Litigants’ failure to have preserved pertinent documents starting as of the date they claim work product protection has occasionally resulted in spoliation issues.  But defendants who have issued “litigation holds” can point to those in arguing that they reasonably anticipated litigation as of that date.  In Johnson v. Air Liquide Large Industries U.S. L.P., Case No. 2:18-CV-259-WCB, 2019 U.S. Dist. LEXIS 152963, at *14 (E.D. Tex. Sept. 9, 2019), the court understandably noted that defendant’s “proposed measures for preserving evidence strongly suggest an awareness of the likelihood of litigation and an intention to take steps in anticipation of that litigation.” 

Litigants’ failure to have imposed litigation holds can hamper a work product claim and create other potentially troublesome issues — but their issuance of such holds can buttress a work product protection claim.