Ensuring a Secure “Hold”: Balancing Practicality and Privilege in Litigation Hold Notices

Litigation hold notices are often assumed to be attorney-client privileged or protected under the work-product doctrine. After all, these notices are typically drafted by lawyers and offer legal guidance on preserving evidence. However, recent court decisions have clarified that, while litigation hold notices are generally protected, certain information about such notices may still be discoverable — particularly if spoliation is alleged.

For example, in FTC v. Amazon, Case No. 2:23-cv-01495 (W.D. Wash. July 9, 2024), the court ordered a 30(b)(6) deposition regarding Amazon's document preservation efforts, including when and to whom hold notices were issued, what data categories employees were instructed to preserve, and what preservation steps they were instructed to take. The FTC had argued that discovery into Amazon’s hold notices was warranted to assess whether spoliation had occurred with respect to ephemeral messaging through applications like Signal.

Similarly, in Doe LS 340 v. Uber Technologies, 710 F. Supp. 3d 794 (N.D. Cal. 2024), the court required Uber to disclose “basic details” about their litigation holds, including the dates of issue and recipients, as well as information about the document sources searched. Plaintiffs argued they needed these details in order to determine whether relevant electronically stored information had been destroyed.

In contrast, in Homeland Insurance v. Independent Health Association, 2025 WL 428547 (W.D.N.Y. Feb. 2025), the court found that defendant’s litigation hold notices were protected by attorney-client privilege because they contained legal advice “involv[ing] the application of legal principles relevant to discovery and evidence preservation to guide the future conduct of Defendants.” The court also emphasized that the notices were labeled as confidential and distributed to a limited group, factors that reinforced an expectation of confidentiality.

Given these recent decisions, companies may want to consider the following approaches when developing their litigation hold practices to better safeguard any privileged information.

Practical Considerations

1.  Anticipating Spoliation Allegations

If someone later claims that evidence was lost, litigants may face requests (or depositions) related to their legal hold notices. To prepare for this possibility, companies can choose to:

• Separate legal strategy from practical instructions. Focusing hold notices on practical preservation instructions, while keeping purely legal analysis in a separate communication, helps reduce the scope of what might be disclosed.
• Avoid sensitive assessments. By the same token, it can be prudent not to include evaluations of the strength of claims, potential liability exposure, or strategic advantages or disadvantages in the hold notice itself.

2.  Documentation Considerations

Courts sometimes view “basic facts” (e.g., date of issue, recipient names) as not privileged. As a result, companies may wish to maintain comprehensive records:

• Track who received the notice and when. A simple spreadsheet or log can help show later that the notice was issued promptly.
• Keep an inventory of data sources. Documenting both custodial (employee accounts) and non-custodial (server archives, shared drives) sources and when each source was searched often shows a good-faith preservation effort.
• Note preservation activities. Some organizations record when a system was locked down or backed up, so they can show they took timely steps to preserve material.

3.  Compliance Approaches

To show diligence in preserving relevant materials (especially if spoliation is claimed):

• Encourage clear understanding. Companies should attempt to make instructions clear so recipients understand what they need to do.
• Training and follow up. Some companies periodically remind custodians of their ongoing preservation obligations or provide short training on preservation do’s and don’ts.
• Consider technology solutions. Automated retention systems or alerts can help track or enforce hold compliance.
• Keep a record of compliance efforts. Recording all follow-up communications, training sessions, and compliance verification can help defend against spoliation allegations.

4. Additional Privilege Considerations

There is no guaranteed way to prevent a court from examining notices or deeming them not privileged, but these are common steps:

• Use clear labels. Companies can mark notices as confidential and privileged to underscore that they are legal communications.
• Reinforce expectation of confidentiality. It is good practice to emphasize to recipients not to forward or discuss the notices. That said, companies should take care not to violate any government whistleblower protections (e.g., making it clear that nothing in the notice limits a recipient’s ability to communicate with any government agencies or otherwise engage in protected activities).
• Choose the right recipients. It can be prudent for distribution of notices to be tailored to the custodians likely to have discoverable information. Overly broad distribution can potentially undermine expectations of confidentiality and the privilege. Finding the right balance can be challenging as failing to reach the right custodians with the notice can lead to future spoliation claims.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.