Discoverability of Litigation Hold Notices in Pennsylvania

Although there is abundant case law in Pennsylvania discussing remedies available to an innocent party when the other party destroys evidence, there is no Pennsylvania decisional law that addresses the discoverability of “litigation hold” notices from an attorney to his or her client, or of any other communication between attorney and client that addresses the obligation to preserve evidence. This article addresses the growing case law emanating from district courts within the Third Circuit that permit limited discovery of such communications. These cases have relied upon the reasoning of the U.S. Court of Appeals for the Third Circuit in Schmid v. Milwaukee Elec. Tool, 13 F.3d 76, 78 (3d Cir.1994), for imposing sanctions when there has been spoliation of evidence by a party. Because Schmid has been broadly adopted by the Pennsylvania Supreme Court as the law of Pennsylvania, it is reasonable to anticipate that Pennsylvania trial courts will follow the federal trial courts and allow discovery of litigation hold notices under appropriate circumstances.

Evidentiary Consequences of Spoliation of Evidence