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

I have suggested that litigation hold notices should not be treated as privileged. See Another Approach to Drafting and Discovery of Litigation Hold Notices (Feb. 21, 2025); The Honorable Paul W. Grimm (ret.), M. Berman, et al., Discovery About Discovery: Does the Attorney-Client Privilege Protect All Attorney-Client Communications Relating to the Preservation of Potentially Relevant Information?, 37 U. Balt. L. Rev. 413, 455 (2008).¹

Many courts disagree: “Courts have held that litigation hold notices are protected by both attorney-client privilege and the work product doctrine.” Brandes v. Steven Madden, Ltd., 2026 WL 799692, *2 (E.D.N.Y. Mar. 23, 2026)(citations omitted). Brandes sued Madden over an alleged breach of a stock purchase agreement.

In Brandes, one question was whether, when a preserving party disclosed that the litigation hold instructions included “texts,” that disclosure waived privilege. The court held that it did not. A second question was whether Brandes made a sufficient preliminary showing of spoliation to compel disclosure of litigation hold notices.  The court held that he had not.  It wrote:

Now pending before this Court is plaintiff’s motion to compel production of defendant’s litigation hold notices…. For the reasons set forth below, the Court denies plaintiff’s motion to compel.

FACTS IN BRANDES

The court wrote: “The dispute over the production of Madden’s litigation hold notices dates back to approximately March 2025 when Brandes sought information regarding Madden’s document and record retention policies as they relate to text messages.”

At that time, the court had ordered the parties to meet and confer and “[i]f necessary, defendant shall provide plaintiff with a declaration setting forth defendant’s preservation efforts as it relates to text messages and produce any applicable document retention policies, if any, as they relate to text messages.”

The conference was not successful in resolving the dispute and the Court ordered defendant to “provide plaintiff with a declaration regarding its preservation of text messages during the relevant time period.”

Madden produced the declaration; however: “Not satisfied with Madden’s production, Brandes requested that Madden ‘produce the litigation hold for this matter.’” Instead, the court ordered another conference of the parties “regarding the text message preservation issue in light of Madden’s recent production of its declaration and exhibit related to its preservation efforts.”

After additional efforts, “Madden also agreed to produce two Rule 30(b)(6) witnesses to testify regarding Madden’s document retention policies.” Brandes moved to compel production of Madden’s litigation hold notices.

WAS THERE WAIVER BY DISCLOSURE?

Based on the deposition of Madden’s CFO, Brandes argued that the attorney-client privilege was waived by disclosure and that the notices must be produced. The court wrote:

Brandes first argues that the Court should compel Madden to produce its litigation hold notices because Madden has relied on the contents of its privileged litigation hold notices as both a “sword and a shield.” … At the deposition of Madden’s CFO, Zine Mazouzi (“Mazouzi”), Madden’s counsel asked Mr. Mazouzi: “Do you recall if the lit hold that you have testified you received included directions regarding text messages?” …. Mr. Mazouzi responded, “Yes, I do.” … When asked by Madden’s counsel whether the litigation hold notice included text messages, Mr. Mazouzi responded, “Yes.” … Brandes contends that this questioning by Madden “put the litigation holds in play,” and that Madden further relied on this testimony during a status conference and in emails to Brandes’ counsel…. 

In response, Madden argues that whether individuals were ordered to preserve text messages does not sufficiently reveal the contents of the litigation hold notices so as to waive the privilege…..

The court explained:

Whether a party is directed to preserve documents is not privileged information that, if disclosed, waives the privilege over the litigation hold notice. See Roytlender v. D. Malek Realty, LLC, No. 21-CV-52, 2022 WL 5245584, at *4 (E.D.N.Y. Oct. 6, 2022). Madden further argues that Roytlender is applicable here because the deposition witness only testified as to whether text messages were ordered to be preserved. The Court agrees.

The court agreed with the general proposition that the attorney-client privilege cannot be both a sword and a shield, but stated:

The information Madden has disclosed at the deposition of its CFO and further relied upon in emails and at a status conference is not considered privileged. The court held in Roytlender that “whether the witness was instructed to preserve documents [ ] is not protected by the attorney client privilege.” Roytlender, 2022 WL 5245584 at *5. As in Roytlender, Madden did not reveal the content of the instructions, but instead only disclosed the fact that text messages were to be preserved. In fact, when plaintiff’s counsel attempted to ask further questions about the “concrete steps” included in the litigation hold notice, defendant’s counsel instructed Mr. Mazouzi not to answer on the grounds that the information was protected by the work product doctrine. [emphasis added].

The court also held that this was not a situation where a partial disclosure requires, in fairness, additional disclosure.  Madden did no more than respond to Brandes’ claim that it did not order preservation of text messages.  Therefore, the court did not order production of the contents of litigation hold notices based on waiver.

WAS THERE A PRELIMINARY SHOWING OF SPOLIATION?

Brandes next “argued that she had made the preliminary showing of spoliation required to compel production of the otherwise privileged litigation hold notices.”  The court agreed with the legal principle, but disagreed on the facts presented, holding that the foundational requirement had not been demonstrated. It wrote:

Although generally protected from discovery by the attorney-client privilege and work product doctrine, litigation hold notices may be discoverable where there has been a preliminary showing of spoliation.

Accord Grimm, Berman, et al., Discovery About Discovery, 37 U. Balt. L. Rev. at 413, passim.

Here, the court found only a showing of alleged “red flags.”

Brandes’ list of red flags includes the following: (1) Madden did not issue its first litigation hold until January 5, 2024, when it anticipated litigation as early as March 2023; (2) the first January 5, 2024 litigation hold notice only went to five employees, with one additional hold sent the same day; (3) Madden sent a litigation hold notice on November 26, 2024 to only three of the original six recipients; (4) Madden never sent a litigation hold notice to Mr. Steve Madden; (5) Madden has produced “virtually” no texts or emails between Mr. Steve Madden and the CEO, Ed Rosenfeld, on certain issues; (6) Madden’s Rule 30(b)(6) witness on preservation testified that Madden does not have a company-wide preservation policy that covers text messages or emails; and (7) Madden did not engage a third-party vendor to handle text collection and back-up until December 16, 2024.

The litigation hold notice was issued the day after suit was commenced.  While Brandes argued it should have been sent months earlier, the court said that does not show spoliation.  Madden sent hold notices to “all of the agreed-to document custodians.”  Further, the individual targeted by Brandes’ allegation, Mr. Madden, was not one of the agreed custodians, assertedly had no relevant emails, and had produced text messages.  Therefore, Brandes did not meet its burden of proof.

The court denied the request to compel production of litigation hold notices.

ADDITIONAL RESOURCES

See generally:

• “Discovery on Discovery” Ordered After Amazon’s Flawed Implementation of Litigation Hold (Oct. 15, 2025);
• Discovery of Litigation Hold Notices Ordered (Apr. 22, 2025);
• Discoverability of Litigation Hold Notices and Steps to Implement a Litigation Hold (Nov. 24, 2024);
• 8 Lessons Learned – Part IV – Disclosure of Recipients of Litigation Hold Notices (May 9, 2024);
• 4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024);
• Discovery on Discovery – Steps Taken to Produce Documents (Jun. 14, 2022);
• Discovery of Steps Taken to Implement a Litigation Hold is Permitted (Mar. 26, 2022);
• Are Litigation Hold Notices Discoverable? (Mar. 5, 2022);
• When is a Litigation Hold Notice Discoverable? — When a Litigation Hold is Defective (Aug. 9, 2021);
• When is a Litigation Hold Notice Discoverable? (Dec. 1, 2020).

Note

1. The law review article suggests that: “Certain facts–such as what steps a litigant took, or failed to take, to preserve material–should be deemed routinely discoverable. Other facts, such as the contents of a litigation hold letter, and attorney-client implementation discussions, should require a greater showing to support disclosure. Actual legal advice, if disclosable at all, should be discoverable only upon a more compelling showing and, perhaps, after in camera review. Although, where there is evidence of a breach of the duty to preserve, there are multiple bases for seeking discovery of some attorney-client preservation communications, the least problematic approach is to assert that implementation communications are unprivileged, compelled exchanges that are only conditionally relevant.” [emphasis added]. ↩︎

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