When a company receives a government subpoena, decides to initiate a lawsuit, or reasonably anticipates a claim against it, in-house litigation counsel often leads the evidence-preserving effort. This typically includes disseminating legal-hold notices to employees possessing relevant documents and information.
All legal holds contain a preservation instruction but may vary in other components. Some, for example, provide detailed information about the investigation, claim, or defense while others simply outline the legal preservation duty. Some notices mandate confidentiality while others assume it.
When litigation later erupts, it is foreseeable that the company’s adversary will challenge the company’s evidence-preservation efforts. And in this litigation-about-the-litigation phase, the adversary moves to compel production of counsel’s legal-hold notices. The question then arises—does the attorney–client privilege or work-product doctrine protect from discovery the in-house lawyer’s legal-hold communications to company employees?
In my Winter 2020 Privilege Place column, I explore how courts answer this question and offer a few practice tips. The column, Privilege and Legal Holds, was published by Today’s General Counsel.