The Equal Employment Opportunity Commission (“EEOC”) initiated this suit in the Southern District of Ohio on behalf of Anthony Ayers-Banks, who alleged that Defendants discriminated against him on the basis of sex orientation. Defendants moved to quash the Plaintiff’s third-party subpoena, requesting emails and communications from DataWorks, which the Defendants claimed were protected by the attorney client privilege. The subpoena requested documents related to the EEOC case, specifically communications involving Defendants’ duty to preserve evidence, including any litigation hold letters. Plaintiff opposed this, claiming that the attorney-client privilege did not apply, and that Defendants’ vague assertion of privilege was insufficient for the Court to assess the applicability of the privilege. The Court reviewed the standard for ruling on subpoenas under Federal Rule of Civil Procedure 45 and reminded the litigants that the party seeking to quash the subpoena bears the burden of proving its claims.

In evaluating the claims of privilege, the Court determined that Defendants had not sufficiently proven that the communications they sought to protect were covered by attorney-client privilege. The attorney-client privilege typically protects communications where legal advice is sought from an attorney, but Defendants failed to specify how the communications in question met this standard. Additionally, the Court concluded that the common interest doctrine, which extends privilege to certain communications shared between parties with a common legal interest, did not apply here, as the relationship between DataWorks and Defendants appears commercial rather than legal.

In attempting to withhold additional documents requested in the subpoenas, Defendants posited that litigation-hold communications themselves are privileged and therefore not discoverable. The EEOC, on behalf of the plaintiffs, countered that the Court should order production of the litigation-hold communications because Defendants’ deletion of the Plaintiffs email account met the requisite preliminary showing of spoliation. While not absolute, courts do generally hold that litigation hold letters are privileged and non-discoverable. However, where there is a credible allegation of spoliation, litigations hold letters can be dispositive to that finding. The Court here sided with the EEOC and the Plaintiff, finding that the “Plaintiff has met its burden of making a preliminary showing of spoliation sufficient to support its discovery request.” The Court found that Plaintiff demonstrated the necessary elements of spoliation, including Defendants’ duty to preserve the emails, their failure to do so, and the relevance of the missing evidence to Plaintiff’s claims. The decision emphasizes the importance of providing detailed evidence when asserting claims of privilege or spoliation and highlights the duty to preserve relevant evidence in litigation.

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