Magistrate Finds Litigation Hold Notices Relevant, But Not Subject To Discovery Because Privileged

Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP, 2006 WL 1520227 (S.D.N.Y. June 1, 2006) and Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP, 2006 WL 1295409 (S.D.N.Y. May 10, 2006)

In these two opinions, the magistrate denied motions to compel plaintiff to produce document retention notices that it had issued regarding the litigation. Plaintiff resisted on privilege grounds, and the moving parties argued that any privilege had been waived by plaintiff’s failure to list the document retention notices on its privilege log.

The court determined that the plaintiff’s document retention (or “litigation hold”) notices were relevant: “Like a party’s destruction of relevant documents, if plaintiff’s document retention notices are patently deficient or inadequate in some other respect, they might support a negative inference concerning the merits of plaintiff’s claims.”

However, since neither of the two notices were in existence at the time plaintiff’s response to the requests for production was due, the court found that plaintiff’s failure to list them on a privilege log did not waive any privilege that applied.