In Major Tours, Inc., et. al. v. Colorel, et. al., 2009 U.S. Dist. LEXIS 68128 (D. N.J. Aug. 4, 2009), U.S. Magistrate Judge Joel Schneider granted plaintiffs' application for production of defendants' litigation hold letters. 

Plaintiffs filed this class action against New Jersey Department of Transportation and several others alleging discriminatory safety inspections of African American owned buses en route to Atlantic City.  Plaintiffs sought production of the State Defendant's litigation hold letters arguing that the letters were relevant to determining the scope of defendants' document production and preservation efforts.

Generally, litigation hold letters are considered privileged materials not subject to production.  However, when spoliation occurs the letters are discoverable.  The court found that plaintiffs had made a prima facie case, had carried this burden and, consequently, ordered their production.  "The fact that one of the defendants admitted he did not save any of his emails and defendants' Rule 30(b)(6) witness did not even know what a litigation hold was, is evidence that defendants did not fulfill their role of preserving all relevant documents."