Does Disclosure of Litigation Hold Directive to Preserve “Texts” Waive Privilege?

Why It Matters

The ruling clarifies the limits of privilege for litigation hold notices, guiding corporations and counsel on what disclosures trigger waiver and when spoliation claims can force production.

Key Takeaways

• Litigation hold notices remain privileged despite partial disclosure
• Disclosure of text preservation direction does not waive privilege
• Spoliation claim requires concrete evidence, not mere red flags
• Courts may order production if clear spoliation demonstrated
• Work‑product doctrine shields detailed litigation hold instructions

Pulse Analysis

The Brandes decision arrives at a pivotal moment for e‑discovery teams grappling with the balance between transparency and privilege. While courts have occasionally treated litigation hold notices as privileged, this case draws a clear line: only the factual acknowledgment that texts must be preserved is permissible, but the underlying instructions remain shielded. By anchoring the analysis in the work‑product doctrine, the court signals that detailed preservation strategies are akin to internal investigative notes, deserving protection from discovery unless a compelling exception arises.

Practitioners must now reassess their hold‑notice drafting and disclosure protocols. Simple acknowledgments during depositions or status conferences will not automatically forfeit privilege, yet any inadvertent revelation of the notice’s substantive content could. Companies should implement strict guidelines for counsel and custodians, ensuring that only high‑level preservation facts are communicated publicly while the granular steps stay confidential. Moreover, the ruling emphasizes that a spoliation allegation must be substantiated with concrete evidence—such as missed preservation deadlines or deliberate destruction—not merely a checklist of procedural irregularities.

From a strategic perspective, the ruling encourages a two‑pronged approach: preserve privilege by limiting disclosure of hold details, and simultaneously maintain robust documentation to rebut spoliation claims. Legal teams should consider in‑camera reviews or protective orders when opponents seek hold notices, leveraging the court’s affirmation that privilege can coexist with a “sword and shield” stance. Ultimately, Brandes reinforces the importance of disciplined e‑discovery practices, reducing the risk of costly production orders while safeguarding privileged communications.