Litigation Hold Documentation: Discoverable or Privileged?
In the case Oleksy v. General Electric Co., No. 06 C 1245 (N.D. Ill. July 31, 2013), an eDiscovery and spoliation dispute arose. In the beginning of the litigation, defendant GE claimed to have issued a litigation hold regarding electronically stored information (ESI), and began producing documents to plaintiff. However, GE’s counsel claimed that one of its databases had been inadvertently purged, and all electronic data contained within was lost. Plaintiff trial attorneys then moved to compel the defendant to produce the litigation hold documents, alleging that the documents were relevant as to the sufficiency of the litigation hold.
GE objected to the order that the litigation hold documentation be produced, asserting attorney-client privilege. The magistrate judge granted the motion to compel, noting that the burden of establishing privilege was on GE and it failed; also, any privilege had been waived as a sanction for the admitted spoliation of electronic data. (Although it should be noted that, after the magistrate suggested GE file an Affidavit regarding the lost data, GE located the data from another source.)
In reviewing the order of the magistrate, the court affirmed the discovery order compelling the production of the litigation hold documentation. Noting that a court can inquire into the assertion of a privilege sua sponte (GE attempted to argue that plaintiff did not assert an objection to their privilege assertion), the magistrate’s holding that GE failed to establish its burden of demonstrating privilege was not erroneous.
Further, the court agreed that a waiver sanction was appropriate in this case, citing the 7th Circuit’s case where “bad faith” was unnecessary for sanctions to be imposed. Although the data was later produced and GE claimed therefore no prejudice to plaintiffs existed, this data was not even discovered until after the magistrate’s order was entered. The court was constrained to only rule upon the information that was presented to the magistrate, and it was GE’s own fault that it failed to discover the copy of electronic data until after being compelled to file an Affidavit regarding the lost data. The court denied the motion to vacate the order compelling the litigation hold documentation.