Court Addresses Privilege Protection for Litigation Holds

December 21, 2022

Companies in or anticipating litigation normally impose litigation holds. If litigation ensues, does the attorney-client privilege or the work product doctrine protect the content of such a hold or the fact of its imposition?

In Roytlender v. D. Malek Realty, LLC, No. 21-cv-00052 (MKB) (JMW), 2022 U.S. Dist. LEXIS 183438 (E.D.N.Y. Oct. 6, 2022), the court adopted the most common approach to this issue: (1) the privilege does not protect the fact of a litigation hold’s imposition (or the absence of such an imposition); (2) a litigation hold’s content normally deserves privilege protection; but (3) “litigation hold letters may indeed be discoverable where there has been a preliminary showing of spoliation.” Id. at *9. While the court did not address work product protection for such litigation holds, presumably the same rules apply.

This widely accepted general judicial approach to privilege protection is fairly generous — most litigation holds do not provide much insight into lawyers’ advice to their clients. Almost by definition, litigation holds deserve work product protection — but that can sometimes be overcome.