[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Stuart v. County of Riverside, 2024 WL 3086634, at *3 (C.D. Cal. Jun. 14, 2024), the District Court found a relationship between work product designations and triggering of the common-law duty to preserve.
The point at which the duty to preserve has been triggered is central to any subsequent spoliation issue. See, e.g., Documenting When the Duty to Preserve Potentially Responsive Information Was Triggered (Jan. 17, 2021).
Generally, work product protects certain information prepared in anticipation of litigation. And, generally, the common-law duty to preserve is triggered when litigation is reasonably anticipated. For example, Fed.R.Civ.P. 26(b)(3) protects “things that are prepared in anticipation of litigation or for trial” and Fed.R.Civ.P. 37(e) addresses sanctions for ESI “that should have been preserved in the anticipation or conduct of litigation….” [emphasis added].
An issue arises when a privilege log entry states that a document is withheld from discovery as work product. Does the date on which work product was prepared equate to the date on which the common-law preservation duty arose?
This blog describes some cases saying “yes.” It cites some authorities answering “no.” And, it explains The Sedona Conference’s middle-of-the-road approach.
WORK PRODUCT = TRIGGER
A link between a work product designation and triggering the common law duty to preserve ESI has been held to exist.
In Stuart v. County of Riverside, 2024 WL 3086634, at *3 (C.D. Cal. Jun. 14, 2024), the assertion of work product protection in a privilege log supported an inference that the subsequent deletion of ESI was wrongful: “[T]he Court concludes that the County’s claim of the work product protection over a month before it permanently deleted the metadata on Coronel’s computer supports an inference of the County’s culpable state of mind.” Id. at *3 (emphasis added); see Designation of “Work Product” Supports Inference of Intentional Spoliation (Jun. 27, 2024).
[T]he Court concludes that the County’s claim of the work product protection over a month before it permanently deleted the metadata on Coronel’s computer supports an inference of the County’s culpable state of mind.
Stuart v. County of Riverside, 2024 WL 3086634, at *3 (C.D. Cal. Jun. 14, 2024) (emphasis added).
The analysis is that, even if the two standards are not identical, they are sufficiently similar so that marking information as “work product” admits that the duty to preserve has been triggered. Because the date of a work product designation must be disclosed on a privilege log, it can also be used by an opponent on a motion for sanctions if potentially responsive information was not preserved after the date of the work product designation. Id.
The doctrine was stated in LendingTree, LLC v. Zillow, Inc., 2014 WL 1309305, at *10 (W.D.N.C. Mar. 31, 2014), the court wrote that:
LendingTree’s duty to preserve evidence arose no later than its assertion of the attorney work product privilege. See, e.g., Siani v. State Univ. of N.Y., No. C09–407 (JFB)(WDW), 2010 WL 3170664, at *5 (E.D.N.Y. Aug. 10, 2010) (“If it was reasonably foreseeable for work product purposes, Siani argues, it was reasonably foreseeable for duty to preserve purposes. The court agrees.”);[1] Sanofi-aventis Deutschland GmbH v. Glenmark Pharms. Inc., USA, No. 07–CV–5855, 2010 WL 2652412, at *5 (D.N.J. Jul. 1, 2010) (holding that the defendants’ duty to impose a litigation hold and institute legal monitoring for purposes of complying with the duty to preserve arose no later than the date on which the defendants began withholding documents as protected by the work-product doctrine because “‘[a] party claiming work-product immunity bears the burden of showing that the materials in question ‘were prepared in the course of preparation for possible litigation.’ ‘“(quoting Holmes v. Pension Plan of Bethlehem Steel Corp., 213 F.3d 124, 138 (3d Cir.2000)));[2] Anderson v. Sotheby’s Inc. Severance Plan, No. 04 Civ. 8180(SAS), 2005 WL 2583715, at *4 (S.D.N.Y. Oct. 11, 2005) (date of documents claimed to be protected by work product triggered the duty to preserve even though the documents were ultimately determined not to be protected by work product).[3]
LendingTree, LLC v. Zillow, Inc., 2014 WL 1309305, at *10 (W.D.N.C. Mar. 31, 2014).
In short, under this analysis: “Ultimately, the work product doctrine and the duty to issue a litigation hold notice turn on whether a party reasonably anticipates litigation. Therefore, the two doctrines are intrinsically intertwined. A number of federal courts, recognizing the relationship between the two doctrines, have held that once a party anticipates litigation activating work product protection, the party has an affirmative obligation to preserve evidence.” M. Bickley and L. Koshatka, “A Strangling Hold: Application of the Work Product Protection,” 55 Defense Res. Instit. 48 (2013).[4]
Stated in the words of the Siani court: “The defendants… have cited no authority that would countermand the common sense conclusion that if the litigation was reasonably foreseeable for one purpose in January 2008, it was reasonably foreseeable for all purposes.”[5]
WORK PRODUCT ≠ TRIGGER
However, the doctrine that assertion of work product shows that the duty to preserve has been triggered is not universally accepted. See, e.g., Robert D. Owen and Melissa L. Fox, The Triggers for Work Product Protection and the Duty to Preserve Are Not Identical – Lexology (Nov. 15, 2017)(“A rule that automatically triggers the preservation duty when an internal memo is first marked with a ‘work product’ notation cannot be squared with the philosophy underlying the 2015 amendments to Rules 26 and 37. An entity may mark materials as work product in anticipation of litigation long before it reasonably anticipates litigation sufficient to justify the imposition of onerous preservation obligations.”); accord M. Bickley and L. Koshatka, “A Strangling Hold: Application of the Work Product Protection,” 55 Defense Res. Instit. 48 (2013).
Decisions adopting both views were cited in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), Chap. 9, 161. I first became aware of the issue in Phil Favro’s blog, Philip Favro, The Interplay between the Duty to Preserve ESI and the Work Product Doctrine – Technethics (Apr. 28, 2015), which appears to be unavailable online. I described another one of Phil’s excellent blogs on this issue, published by Driven as “Protecting Work Product in the Age of Electronic Discovery,” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), Chap. 11.
A MIDDLE ROAD:
DESIGNATING “WORK PRODUCT” IS ONE PERTINENT FACTOR IN A “TRIGGER” ANALYSIS
There is also a middle-of-the-road analysis.
In “The Sedona Conference Commentary on Legal Holds, 2d Edition: The Trigger & The Process,” 20 Sedona Conf. J. 346, 382 (2019), Sedona suggested that one pertinent factor in deciding whether a duty to preserve was triggered is “[w]hether an organization that is considering bringing a claim has begun to mark documents to indicate that they fall under the work-product doctrine….”
Sedona lists a number of other factors and adds: “These factors are not exhaustive, and no single factor is necessarily determinative of what response is reasonable. All factors must be evaluated reasonably and in good faith.” Id. at 382. However, Sedona appears to refer only to an entity that is considering “bringing a claim,” but not one considering a need to defend against one.
The issue may be more nuanced than a one-size-fits-all approach. For example, in the work product context, the court in S.E.C. v. NIR Grp., LLC, 283 F.R.D. 127, 131, 133-34 (E.D.N.Y. 2012), wrote that “some documents were drafted in the course of SEC examinations that predate the filing of this action by more than two years… Defendants argue that these documents are not subject to work product protection because ‘at least 18 of the witnesses were interviewed in 2009—three years ago.’” While recognizing that there is a temporal element to “anticipation,” the NIR court added:
Does the amount of time that has transpired between the preparation of a document and the commencement of civil litigation bear upon whether that document qualifies for work product protection? One can imagine situations in which it does not. Suppose, for example, that a lawyer prepares a memo for a client on the advisability of filing a civil breach of contract action, laying out theories of litigation, strengths and weaknesses of the case, and trial strategies. The application of the work product privilege to such a document cannot turn on whether the client files an action the next day, or waits nearly six years before filing. This issue is further complicated by the fact that, in some instances—such as where the client is a potential defendant in a civil action—the client is not in control of the timing of the commencement of the litigation. In other instances—as may be the case here (though the SEC has not made a showing to this effect)—civil litigation may await the commencement or conclusion of parallel criminal proceedings. While this last example may represent a strategic choice by government counsel, such a choice would not vitiate the mental impressions contained in work product prepared by counsel, irrespective of the passage of time.
S.E.C. v. NIR Grp., LLC, 283 F.R.D. 127, 131, 133-34 (E.D.N.Y. 2012).
In other words, a potential litigant preparing work product may be facing a different set of concerns than those applicable to triggering of the common-law duty to preserve potentially responsive information for reasonably anticipated litigation. The policies supporting work product protection may differ – – or suggest a different result – – than the policies requiring preservation.
Under that analysis, assume that a potential defendant became concerned about the possibility of litigation. Assume that it sought advice, and counsel prepared “work product” in connection with that question. And, assume that the conclusion was that any litigation would not have a substantial chance of success. The document is work product; but, it concludes that litigation is not reasonably anticipated. So, why should it trigger a preservation duty?
Another example from NIR, 283 F.R.D. at 134, is “pre-closing evaluations of a corporate transaction that could result in litigation….” It is at least arguable that the evaluations meet the anticipation test for work product, but not for triggering a litigation hold. Another example from NIR is “provision of a legal memorandum to support financial statement reserves for projected litigation….”
The “mere existence of a dispute” does not necessarily trigger a duty to preserve. E.g., Shlian v. Shoppers Food Warehouse Corp., 2014 WL 1320102, at *5 (D. Md. Mar. 31, 2014) (citing Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 510 (D. Md. 2009)).
Assume further that there is a six-year statute of limitations and suit was not commenced for five-and-a-half years. It would seem disproportionate to require a five-year legal hold based solely on the preparation of work product, especially where the protected entity does not control when litigation may be commenced.
In my opinion, Sedona’s “it is only one-factor” approach, applied to both sides of the “v.,” seems better than an “all or none,” per se rule.
CONCLUSION
As with any decision when there is conflicting authority, caution and planning are prudent. Marking documents as “work product” may protect them from discovery. It also may trigger the duty to preserve. Depending on the facts, that may be a double-edged sword.
Attorneys and organizations should be cognizant of the possibility of arguments that the labeling of information as attorney work product (either at the time of creation or in later logs) is tantamount to admitting a preservation obligation existed at the time the information was created because both doctrines depend on a reasonable anticipation of litigation.
Commentary on Legal Holds, 2d Ed., 20 Sed. Conf. J. at 374 n. 64.
Sedona correctly states that: “Attorneys and organizations should be cognizant of the possibility of arguments that the labeling of information as attorney work product (either at the time of creation or in later logs) is tantamount to admitting a preservation obligation existed at the time the information was created because both doctrines depend on a reasonable anticipation of litigation.” Commentary on Legal Holds, 2d Ed., 20 Sed. Conf. J. at 374 n. 64.
Notes
[1] In a later decision, the Siani court wrote: “The Court finds no grounds to disturb Magistrate Judge Wall’s Order and concludes that it is both legally and factually correct.” Siani v. State Univ. of New York at Farmingdale, 2011 WL 2580361, at *3 (E.D.N.Y. June 28, 2011).
[2] Holmes did not involve triggering the duty to preserve.
[3] I respectfully disagree with the cited description of Anderson. There, the plaintiff asserted trigger based on the marking of work product. However, the Magistrate Judge found that the documents were not work product. Id. at *4. The court wrote that, “[n]onetheless,” the administrator “claimed” that it anticipated litigation on that date. Id. That appears to differ from concluding that marking documents as work product equated to a trigger.
[4] The DRI article suggests that some litigants may flip the issue and argue the converse – “some parties seeking material withheld on work product grounds will argue that failing to issue a litigation hold indicates that the withholding party did not anticipate litigation so the withheld material cannot have work product protection.” DRI cites two cases in which the argument was made, one of which rejected it as baseless. The argument was also rejected in Gordon v. City of New York, 2016 WL 3866585, at *2 (S.D.N.Y. July 13, 2016) (“the issuance of a litigation hold on a particular date does not, in itself, mean that litigation was not anticipated a week before”).
[5] The information protected by work product must relate to the same claim that the duty to preserve focuses on.
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