PMK Depo or Production of Litigation Hold Letters?

The idea of a litigation hold getting produced in a lawsuit is nightmare fuel for many attorneys. Nothing good will come from it. Luckily for the party in this case, the Court denied that motion to compel…without prejudice.

In a punitive class action case over claims false advertising of nationwide 4G/LTE coverage, the Plaintiffs claimed the Defendant failed to preserve ESI of C-level executives and sales data. For the remedy for this failure, the Plaintiffs sought discovery on the Defendants document retention practices. Thomas v. Cricket Wireless, LLC, 2020 U.S. Dist. LEXIS 234644 at * 2 (N.D. Cal., Dec 14, 2020).

The Defendants [naturally] did not agree with the Plaintiffs. The Defendant admitted that there were legacy databases from 2012-2014 that had not been retained, however, there was no spoliation of ESI, because the Defendants were not under a duty to preserve at that time. Moreover, the Defendant claimed they were transparent about what had not been preserved, and 1) were going to produce information on when databases were sunset; 2) identify when data of former officers had stopped being preserved; and 3) provide a PMK witness on their retention of legacy data. Thomas, at *2.

The fight was over a very narrow discovery request for the Defendant to produce their litigation hold notices and hold releases for relevant records over the 2012-2014 time period. Thomas, at *3.

Litigation hold notices prepared by an attorney and directed to the client are protected by the attorney-client privilege. Thomas, at *3-4. The Court denied the motion to compel in favor of the already planned PMK deposition on records retention. The Plaintiffs could ask questions on when the litigation holds were given, the information that was covered by the hold, and the specific instructions that were given to the custodians. Thomas, at *5-6. However, the motion could be renewed depending on the outcome of the PMK deposition.

Bow Tie Thoughts

There is no shortage of material on litigation hold and compliance, such as 7 Steps for Legal Holds of ESI and Other Documents and productions such as Legal Hold Pro. Without going into extreme detail, depositions on how data was maintained and how a party executed a litigation hold can be like the spectrum of a rainbow. For a single party, it could simply be how relevant emails were collected. For a large corporation, it can include identifying who was subject to a hold and the applications used to preserve their data. Many data management applications have the ability to preserve data, which is fair game to ask about in a deposition.