An Attorney-Client Communication Advising Spoliation is Not Privileged

[EDRM Editor’s Note: The opinions and positions are those of the Michael D. Berman.]

“Courts confronted with lawyers involved in advising spoliation of evidence have concluded [that] such attorney-client communications are not shielded by the privilege due to the crime-fraud doctrine.” In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2026 WL 1632746 (N.D. Cal. Jun. 5, 2026). The court explained: “The specific crime-fraud at issue then is spoliation of evidence.” Id. at *5.

Meta redacted four documents, asserting attorney-client privilege. The court held that the four disputed documents post-dated commencement of the lawsuit. Therefore, they were chronologically in the litigation hold time frame.

Plaintiffs challenged the privilege. The court wrote: “Plaintiffs argue that these materials are subject to the crime-fraud exception to the attorney-client privilege, on the grounds that communications from counsel to a client to spoliate evidence are not properly shielded by the privilege. In support, Plaintiffs bring to this Court’s attention a pair of recent rulings from the Superior Court of the District of Columbia finding that these four documents are subject to the crime-fraud exception and ordering their production.” Id. at *1. The Social Media Adolescent court stated:

Here, Plaintiffs argue that the crime-fraud exception applies here, because the allegedly privileged communications at issue constituted advice from lawyers to Meta employees that they should alter or change language in certain documents and such advice resulted in and encouraged spoliation of evidence.

Id. at *4.

At its core, Plaintiffs’ argument was that Meta’s internal messages showed that Meta’s attorneys had advised that documents subject to a litigation hold should be modified. The Social Media Adolescent court explained the crime-fraud exception to the attorney-client privilege in this context. After in camera review, the court held that, on the facts presented, the crime-fraud exception did not apply. It found the advice to be not what Plaintiffs asserted; pointed to lack of destruction of evidence; and, noted the availability of “before and after” versions of the documents. It then ordered production of those versions. As such, there was no prejudice. I assume that, because the issue was the crime-fraud exception, the court did not cite the spoliation rule, Fed.R.Civ.P. 37(e).

DIRECTIVES TO SPOLIATE ARE NOT PRIVILEGED

Like most states: “Under applicable ethical rules, a California lawyer cannot counsel a client to unlawfully alter evidence.” Social Media Adolescent, 2026 WL 1632746, at *5. Further, falsifying evidence is a crime. Id.

“Under California Rule 3.4(a), a lawyer cannot counsel a client to destroy or alter evidence. Destroying evidence eliminates such evidence from possible discovery entirely and is sanctionable conduct.” Id. “Irreversibly altering evidence, such as in a way that overwrites or irretrievably replaces the original evidence, also eliminates the original text or content of that evidence from possible discovery entirely.” Id.

Accordingly, it should be self-evident that when a lawyer advises a client to destroy evidence completely or to irreparably modify that evidence (where litigation is reasonably foreseeable at the time, or worse, ongoing), communications regarding that advice could be subject to the crime-fraud exception because such advice would run afoul of the lawyer’s duties under the rules of professional conduct and could implicate criminal statutes concerning fabricating or destroying evidence.

Id. at *6 (emphasis added).

Thus:

Communications between lawyer and client respecting spoliation of evidence, however, is fundamentally inconsistent with the asserted principles behind the recognition of the attorney-client privilege, namely, “observance of law” and the “administration of justice.” Indeed, by intentionally removing relevant evidence from litigation, spoliation directly undermines the administration of justice. Moreover, an attorney who counsels a client about the spoliation of evidence is not advancing the observance of the law, but rather counseling misconduct. Thus, there is no logical reason to extend the protection of the attorney-client privilege to communications undertaken in order to further spoliation.

Id. at *6 (emphasis added; citation and quotation marks omitted).

META GAVE NO DIRECTIVES TO, AND NOTHING WAS, SPOLIATED

After in camera review and based on a comprehensive analysis, the court essentially concluded that Plaintiffs failed to show destruction advice and “before and after” copies were available.

[T]he Court bases its finding that the crime-fraud exception should not apply in large part on the rationale that, if the underlying documents and evidence which demonstrate the changes made to the documents are produced, then there has been no spoliation. It follows that if Meta refuses or otherwise fails to produce the documents as ordered herein, or if it turns out that the prior versions of the documents do not in fact exist, then a fundamental premise of the Court’s rulings would be lacking. Accordingly, the Court DENIES WITHOUT PREJUDICE Plaintiffs’ request to find these four documents are subject to the crime-fraud exception and not privileged.

Id. at *14.

“Documents 1 and 2”

As to two documents, the court found that the facts showed only discussion about modifying other documents and those comments were ultimately not implemented. Further, Meta produced seven versions of the study in discovery. 

Mere discussion was insufficient to trigger the crime-fraud exception. After detailed review of “Documents 1 and 2,” the court concluded: “Based on the record submitted, there was no destruction of documents at issue here. At best, the record demonstrates that there was discussion about ‘possible’ alteration of part of the MYST study proposal. Ms. [redacted]’s statement that ‘ultimately’ the language was not modified implies that, in the process of editing/drafting before the MYST study was finalized, the language underwent modifications which ‘ultimately’ were not implemented. The issue then reduces to whether the crime-fraud exception applies to communications regarding proposed or possible modifications to the underlying MYST study proposal, i.e. whether such communications qualify as some form of advising improper alteration of evidence.” Id. at *7 (emphasis added). 

However, not only was there no implementation, here multiple versions of the document were available. “[W]here the various versions of the underlying document (both predating and postdating the attorney communication) are produced in discovery, there is insufficient cause to pierce the privilege based on the crime-fraud exception.”

As noted, here, Meta has confirmed that seven versions of the MYST study have been produced in discovery. Meta has confirmed that previous versions (prior to the attorney advice) of the MYST study proposal have been found and retained in its document repositories (although not produced in discovery previously). Based on this record, there has been no destruction of evidence, because the versions of the MYST study proposal which both predate and postdate the attorney advice here still exist. And there has been no irreversible or unreviewable alteration of evidence, because the pre- and post- advice versions exist and thus any changes are discoverable from simple comparison of the text of the various versions.

Id. at *8 (emphasis added).

The court ordered production of the withheld documents and held that the crime-fraud exception did not apply. Id.

“Document 3”

The court reviewed “Document 3.” It found no evidence of any directive to alter it.

It wrote that “the Court finds that the following two redacted chat messages in Document 3 do not mention, discuss, or even relate to any communication from anyone (including a lawyer) to destroy, alter, or change any evidence….” Id. at *9. “There is simply no discussion in these two chat messages regarding editing, altering, changing, modifying, destroying, or in any way spoliating any evidence.” Id.

Therefore: “Based on the record submitted, there was no destruction of documents at issue here. At best, the record indicates that there was discussion with Meta’s lawyers about redesigning the MYST study. As with Documents 1 and 2, the issue then reduces to whether the crime-fraud exception applies to communications regarding proposed and implemented modifications to the MYST study documents, i.e. whether such communications qualify as improperly advising alteration of evidence.” Id. at *10. It did not apply.

Again, multiple versions were preserved: “Meta has confirmed that previous versions (prior to the attorney advice) of these collaborative documents are found within Google Vault (although those versions have not been produced in discovery previously).”

The court concluded that: “Based on this record, there has been no destruction of evidence, because the versions of the MYST study documents which both predate and postdate the attorney advice here still exist. And there has been no irreversible or unreviewable alteration of evidence, because the pre- and post- advice versions exist, and thus, any changes are discoverable from simple comparison of the text of the various versions.” Id. at *11. Again, production was ordered.

As such, there was no prejudice: “With these previous versions of the MYST study documents in hand, as well as the already-produced later version of those same Google documents, Plaintiffs will be able to determine readily what changes were made to the language of those documents over time and make use of those facts in arguing the merits of this case however they see fit.” Id. at *11. The crime-fraud exception did not pierce the privilege.

“Document 4”

In “Document 4,” Meta’s counsel suggested edits to a slide deck. The court explained that “the chat messages at issue refer to multiple alterations suggested by Meta’s counsel to text in a set of slides to be used for a presentation which Ms. [redacted] and Ms. [redacted] were working on at the time.” Id. at *12. 

Unlike Documents 1 and 2, the edits were made: “There is no real dispute that the slide deck discussed by Ms. [redacted] and Ms. [redacted] changed over time.” Id.

However, as before: “Meta confirms that “prior versions of the slides, including the versions that predate the lawyer’s advice, have been retained, but have not been produced.” Id. at *13 (cleaned up).

Because of that, the court wrote: “Based on the record submitted, there was no destruction of documents at issue here. At best, the record demonstrates that there was discussion about alterations to the language in the underlying slide deck discussed in the chat messages of Document 4.” Id. at *13. 

Again, there was no prejudice: “Based on this record, there has been no destruction of evidence, because the versions of the slide deck which both predate and postdate the attorney advice here still exist. And there has been no irreversible or unreviewable alteration of evidence, because the pre- and post- advice versions exist, and thus, any changes are discoverable from simple comparison of the text of the various versions.” Id. Again, production was ordered.

“With these previous versions of the slide deck in hand, as well as the already-produced later version of that slide deck, Plaintiffs will be able to determine readily what changes were made to the language of that document over time and make use of those facts in arguing the merits of this case however they see fit.” Id. The crime-fraud exception did not apply.

Inconsistency with the D.C. Superior Court

The Social Media Adolescent court recognized that its holding differed from a decision of the D.C. Superior Court on the same records: “The Court is cognizant that its conclusions as to the crime-fraud issues here differ from those of the D.C. Superior Court.”

It distinguished that decision on several bases, one of which was governing law: “As the D.C. Superior Court’s order denying Meta’s motion for reconsideration makes clear, the D.C. Superior Court was applying D.C. law on the issue of crime-fraud and not the controlling Ninth Circuit standards applicable here. The precise formulation of the crime-fraud standard under D.C. law is not identical to the formulation of the standard under Ninth Circuit or California law (discussed above). To the extent the conclusions of law differ as between this Court and the D.C. Superior Court, that should not be surprising and is of course one reason why the D.C. Superior Court’s decisions are, at best, nonbinding, persuasive authority.” Id. at *14.

Because of these procedural and other differences, the court was not persuaded by the D.C. decision. There was, however, a practical issue.

The Social Media Adolescent court noted that the unredacted documents may be “imminently” produced in D.C., and it considered the “practical impact” of that eventuality. “As a practical matter, at some point it is possible that this entire dispute as to privilege may become moot or at least narrowed.” Id. at *16. The Social Media Adolescent court granted Plaintiffs leave to file for relief “if, for example, the four documents are made public in another forum.” Id.

A Detour Into Fed.R.Civ.P. 37(e)

The procedural rule governing spoliation of ESI is Fed.R.Civ.P. 37(e). Under that Rule, sanctions may be imposed only “[i]f electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery….” [emphasis added].

Here, the before and after versions appear to have satisfactorily restored or replaced any ESI that had gone missing. As such, no sanction would be permissible. In short, arguably, there was no spoliation and therefore there could be no application of crime-fraud exception to the attorney client privilege if that exception was grounded on alleged spoliation.

Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.