Litigation Hold Notices Protected by Attorney-Client Privilege and Work Product Doctrine

In re eBay Seller Antitrust Litig., 2007 WL 2852364 (N.D. Cal. Oct. 2, 2007)

Plaintiffs moved for an interim preservation order because, in their view, defendant eBay had failed to disclose sufficient information regarding the efforts it was making to ensure that relevant ESI was preserved and collected.  Although the parties agreed that eBay would provide a witness to testify under Rule 30(b)(6) of the Federal Rules of Civil Procedure regarding its ESI preservation and collection efforts, they disagreed about whether eBay must produce the “document retention notices” (“DRNs”) it sent out to approximately 600 of its employees, and whether eBay must disclose the names and job titles of those approximately 600 employees.

The court ruled that eBay need not produce copies of the DRNs, nor any information about matters contained therein that were privileged or constituted work product.  However, the court ruled that plaintiffs were entitled to inquire into the facts as to what the employees receiving the DRNs had done in response.  The court elaborated:

eBay has made an adequate showing that the DRN documents themselves include material protected under attorney client privilege and the work product doctrine.  To the extent, however, that eBay is seeking to foreclose any inquiry into the contents of those notices at deposition or through other means, such a position is not tenable.  Although plaintiffs may not be entitled to probe into what exactly eBay’s employees were told by its attorneys, they are certainly entitled to know what eBay’s employees are doing with respect to collecting and preserving ESI.  Furthermore, because it would neither be reasonable nor practical to require or even to permit plaintiffs to depose all 600 employees, it is appropriate to permit plaintiffs to discover what those employees are supposed to be doing.  Even though such inquiry may, indirectly, implicate communications from counsel to the employees, the focus can and should be on the facts of what eBay’s document retention and collection policies are, rather than on any details of the DRNs.  Thus, while plaintiffs should not inquire specifically into how the DRNs were worded or to how they described the legal issues in this action, plaintiffs are entitled to know what kinds and categories of ESI eBay employees were instructed to preserve and collect, and what specific actions they were instructed to undertake to that end.

(Footnote omitted; italics in original.)  Although the court commented that, whether the privilege or work product protection would apply to instructions regarding document retention or collection was "far from certain," it declined to decide that issue in light of the other conclusions reached.

The court also ruled that eBay must disclose the identities of the 600 employees who received the DRNs, since eBay had not shown that the employees’ identities were protected from discovery by the attorney-client privilege or work product protection.