Are “Litigation Holds” Protected by the Privilege or the Work Product Doctrine?

June 24, 2020

With pandemic-triggered litigation predicted to increase, corporations’ lawyers undoubtedly will address the possible duty to impose “litigation holds,” which direct corporate employees to preserve pertinent documents.

Do such “litigation holds” themselves deserve any protection? They might theoretically convey legal advice to corporate employees who need it – thus meriting attorney-client privilege protection. But most “litigation holds” do not provide sufficient detail to justify that assertion. In In re 3M Combat Arms Earplug Products Liability Litigation, Case No. 3:19-md-2885, 2020 U.S. Dist. LEXIS 48461 (N.D. Fla. Mar. 20, 2020), the court dealt with the more commonly-asserted work product protection. Taking the majority view, the court found that litigation holds are “textbook work product” – because “[u]nlike normal business activities . . . litigation hold notices are prepared because of the prospect of litigation.” Id. at *23. The court also adopted the majority view in assessing whether the adversary could overcome that work product protection – understandably explaining that “[t]he prevailing view is that litigation hold notices are discoverable only if there is a preliminary showing of spoliation.” Id. at *22.

This approach makes sense. It does not provide absolute protection, but instead prevents corporations’ adversaries from second-guessing such “litigation holds” absent evidence that the holds did not properly result in document preservation.