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: