318 F.R.D. 234
D. Conn.2016Background
- Plaintiff Connie Bagley alleges discrimination after Yale SOM declined to reappoint her; she filed internal complaints and later state and federal actions (CHRO complaint March 2013; federal complaint Dec. 20, 2013).
- Yale General Counsel sent litigation-preservation notices ("litigation hold notices") to 65 individuals in eight batches between March 2013 and August 2014, instructing broad preservation of hardcopy and ESI and requesting survey responses.
- Bagley sought discovery of the actual notices, the completed preservation-survey forms returned by recipients, and an affidavit describing non-ESI documents collected from recipients, to evaluate a potential spoliation claim.
- Yale resisted, asserting attorney-client privilege and work-product protection for the notices and forms, and argued production should only follow a showing of actual spoliation.
- The Court found the notices were broadly issued and sent slowly over many months after Bagley had threatened or pursued legal action, creating a legitimate basis to probe preservation steps and recipients’ responses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Yale's litigation hold notices and recipients' survey responses discoverable? | Bagley: Notices and returned forms bear directly on preservation and possible spoliation and must be produced. | Yale: Notices are privileged (attorney-client and work product); production improper absent proof of spoliation. | Produced: Court overruled privilege/work-product objections and ordered production. |
| Must plaintiff first prove spoliation before obtaining hold-related discovery? | Bagley: Need discovery to determine whether spoliation occurred; no prior proof required. | Yale: Plaintiff must first show spoliation before obtaining privileged material. | No rigid prerequisite: Court allowed discovery to assess spoliation merit; production need not await a spoliation motion. |
| Does the content/purpose of the hold notices make them privileged? | Bagley: Notices were practical preservation instructions, not confidential legal advice. | Yale: Notices were communications from counsel to clients and thus privileged/protected. | Predominant-purpose test applied: notices were preservation directives (not predominantly legal-advice communications) and not protected. |
| Is an affidavit describing non-ESI documents collected from recipients discoverable? | Bagley: Yes — needed to determine what was collected and whether evidence was lost. | Yale: Seeks to limit further intrusive discovery. | Ordered: Yale must provide an affidavit (from a Yale officer/employee) describing non-ESI materials received and what was done with them. |
Key Cases Cited
- West v. Goodyear Tire & Rubber Co., 167 F.3d 776 (2d Cir.) (district court authority to sanction for spoliation and objectives for sanctions)
- Chambers v. NASCO, Inc., 501 U.S. 32 (Supreme Court) (inherent power of courts to sanction litigation misconduct)
- Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir.) (pre-Rule 37(e) standard permitting adverse inference on culpability including negligence)
- Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423 (2d Cir.) (duty to preserve arises when party knows or should know evidence may be relevant)
- In re County of Erie, 473 F.3d 413 (2d Cir.) (attorney-client privilege elements and predominant-purpose test)
- Schaeffler v. United States, 806 F.3d 34 (2d Cir.) (communications must be confidential and for legal advice to invoke privilege)
- In re Steinhardt Partners, L.P., 9 F.3d 230 (2d Cir.) (work-product doctrine protects attorney mental impressions)