Corporations often seem to produce documents like chickens produce eggs – frequently, randomly and sometimes without much obvious forethought. And they (sometimes, not often enough) then try to protect them in some manner or another. So, it would seem, do attorneys, although one would think there is a bit more forethought in what they prepare; and there is usually a lot more rigor in thinking about what they keep. So what about legal holds – once issued, are they protected documents…is it “hands off” to opposing counsel? Or are legal holds just another discoverable piece of paper? I can think of a couple of rulings that appear support legal holds either being privileged attorney-client documents, or protected as attorney work product. All well and good, for arguments sake. But what about the new FRCP guidelines that emphasize more transparency? It seems to me (as a non-attorney and not providing advise) that a company or firm can be quite comfortable in following one of these paths without “shame or blame”; they are simply protecting themselves and/or their client by not disclosing strategy, intent or potentially opening themselves to broader claims in a matter. But…there are always “but’s”…what about these two scenarios?
Claims against you in court of spoliation – the contents and timing of a properly-posted legal hold pose the best first-line defense against claims of spoliation. If opposing counsel should make such nefarious (hopefully!) claims against you, you can relinquish privileged or work product status, and present the legal hold can as proof of your honest intent and effort to comply with the scope and requirements of the matter as presented. By the time you have reached this unfortunate point, arguments based on strategy have long been presented – opposing counsel and the court knows where you are at in the matter, or should if everyone is paying attention. So this scenario seems to allow for both ‘yes’ and ‘no’ answers to whether legal holds are protected…or the much-preferred ‘it depends’. Everyone likes a little wriggle room!
Secondly, and again with the ‘wriggle room’ attitude – while a legal hold document in itself may fall under privileged or work product status, what about some of its contents? I know that may seem a bit ludicrous – how can a document be protected, but not some of its contents, you may ask. Here I defer to a good argument posted by Craig Ball some time ago, specifically regarding search terms, in response to this argument that search terms are privileged. One may read these opinions and take sides as you wish. My thought is that there is some middle ground, especially as TAR discovery/review capabilities have become commonplace. Search terms have been traditionally used in preparation for developing strategy for a pending matter, or to actually find out what a company/client may possess, may have written or said that needs to be reviewed before you even go forward with meet-and-confers and beyond; in other words, to see what basis there is for an action, either on your side or against you. In addition, TAR process now can utilize search terms to “train” your discovery software to provide the most relevant data possible. In either case, you would not want to provide those search terms to opposing counsel. But, once you have established your data collection, it makes perfect sense to share the search terms used in that collection with opposing counsel. This openness falls well within the new FRCP guidelines for more transparency and cooperation, which are also terms to warm the cockles of the most hard-hearted judge (such as the best judge ever on Law and Order). Search terms should be part of every legal hold notice, but I believe they should also be available to opposing counsel. Maybe a little sharing can avoid later headache.