Why do lawyers write “Privileged & Confidential” at the top of a legal hold notice? Most courts have decided that legal hold notices are immune from discovery, but not because of the header or title. What generally protects a legal hold notice from discovery is the substantive language used in the notice and the process by which the notice was communicated. A proper notice should be a confidential communication from an attorney (outside counsel or corporate counsel) to only those corporate employees who need to know about it, and it should specifically instruct those employees to preserve information in anticipation of litigation. As more fully explained below, a poorly drafted or poorly communicated legal hold notice may be discoverable – with or without a “Privileged & Confidential” header.
When the need arises, a litigation hold should be implemented quickly and effectively to avoid the inadvertent destruction or overwriting of potentially responsive data. The time to implement a litigation hold may be when it can be reasonably anticipated that the company may be sued or receive a subpoena in a case where such data may be relevant. Failure to implement a litigation hold may lead to spoliation issues and sanctions for the failure to preserve evidence.