Electronic Discovery Law

Capitano v. Ford Motor Co., 831 N.Y.S.2d 687 (N.Y. Sup. Ct. 2007)

In this product liability case, plaintiffs sought production of defendant’s “suspension orders,” also known as "litigation hold notices."  Plaintiffs argued that the suspension orders should be produced in light of the fact that Ford was unable to produce certain documents.  Plaintiffs contended that, with access to the suspension orders, they would be able to determine if the documents in question were intentionally or negligently destroyed, or perhaps secure information which may lead to the discovery of the missing documents.
Ford asserted that the unavailability of the documents was beyond its control, and that it had made a diligent, good faith effort to find the documents.  Ford argued that the suspension orders were not relevant, and even if they were, they were protected from discovery by the attorney-client privilege and/or work product doctrine.  Ford submitted an affidavit from an attorney in its legal department who explained that the suspension orders were “’communications (a) that are issued by attorneys in Ford's Office of the General Counsel in connection with certain anticipated or pending litigation or administrative proceedings and (b) that identify attorney-selected categories of documents required to be maintained beyond periods set out pursuant to Ford's records management program.’" (Citation to the record omitted.)  The attorney further explained that the suspension orders were confidential communications between the attorneys and representatives of Ford, were disseminated to only those employees who deal with Ford's record management program , and contained the warning that the "suspension orders" were privileged and confidential and that dissemination should be limited to persons working at Ford on a need-to-know basis.

Plaintiffs countered by offering the deposition testimony of another Ford attorney who, in an unrelated case, stated that Ford’s suspension orders were posted on Ford's intranet communications system and were available to all employees.  From this, plaintiffs argued that any attorney-client privilege was waived.

Although the court agreed with plaintiffs that the requested “suspension orders” may lead to the production of admissible evidence and were, therefore, relevant, it denied the motion.  The court concluded that the suspension orders were attorney-client privileged communications protected from discovery under N.Y. Civil Practice Law § 4503 (McKinney 2007).