Custodian interviews regarding preservation practices lost privilege protection today. See ediscoverylaw.com’s [1] summary and the [1] case here. Even though part of the reason privilege was deemed waived was that Intel offered up the information, this is one in a series of opinions from different magistrate judges where “discovery about the discovery” is becoming a reality.

Further, the Special Master ruled that Intel had waived work product protection, noting that Intel had agreed to produce, “detailed written description[s] of the preservation issues affecting [every] Intel Custodian, including the nature, scope and duration of any preservation issue(s).” The Special Master continued:

Intel could have left AMD and the Class Plaintiffs to their own devices, forcing them down the path of protracted world-wide preservation depositions. It did not. Rather it trumpeted its willingness to have AMD, the Class Plaintiffs and the Court informed as to fact work-product gathered and provided “a detailed written description of the information provided by each custodian [to Weil] during the interviews.”

Therefore, the Special Master concluded that Intel could not “mask” its agreed-to discovery of custodian information by asserting work product protection with respect to fact work product which, in the Special Master’s view, was at the heart of Intel’s position on its preservation issues.

The challenge around legal holds now is to design and implement transparent processes that also allow honesty on the part of custodians and attorneys. Weave confidential strategy into your documentation at your own risk. (Thanks and a hat tip to [2] Browning Marean for the discussion.)