In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court “allowed [defendants] Hillrom to take limited discovery about when [plaintiff] Linet’s duty to preserve may have arisen….”

In short, the court authorized discovery of privilege-log-type information, such as when plaintiff communicated with counsel prior to suit and the general subject-matter of those communications. However, it did not allow discovery of the privileged communications.

The Linet Americas court allowed ’narrowly tailored’ discovery of ‘when Linet reasonably anticipated litigation,’ including ‘a log of communications between Linet and its law firm from December 2019 to April 2020 (containing the dates, participants in, and the subject matter of the communications).’”

One limit on the scope of that discovery was that the court “did not require Linet to produce privileged communications related to that issue.”

The court wrote that: “Hillrom contends production of Linet’s privileged communications with counsel before its retention of Hunton Andrews Kurth, the law firm that represented Linet in this lawsuit when it filed its complaint, are ‘central to [ ] ‘when Linet’s duty to preserve arose,’ ‘ and this discovery ‘will inform the proper remedy for Linet’s ESI destruction …’”

The court rejected a request for that information, writing: “While Linet’s communications with counsel before the execution of Linet’s retention agreement with [its then-counsel] Hunton may be relevant to when Linet’s duty to preserve arose, Hillrom does not cite any cases authorizing or requiring piercing the attorney client privilege in such circumstances.”