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More Lessons From VW: How Not to Do a Litigation Hold

By Casey C. Sullivan, Esq. on January 25, 2017 | Last updated on March 21, 2019

There's plenty in-house attorneys can learn from Volkswagen's emissions fraud scandal: the role of the private organizations in enforcing regulations, the teeth in the Clean Air Act, the strange overlap between copyright law and defeat devices.

But ever since the automaker's $4.3 billion settlement with the Department of Justice two weeks ago, we've all been fixated on one thing: the role of one VW in-house attorney in bungling a litigation hold, resulting in destroyed documents and implicating the attorney in obstruction of justice. The lawyer, known only as "Attorney A," may still be under investigation.

Attorney A and Deleted Docs

The statement of facts attached to the VW plea agreement details Attorney A's role in the destruction of thousands of documents during the government's investigation. Attorney A worked out of Volkswagen's headquarters in Wolfsburg, Germany.

In August, as the emissions scandal was unfolding, Attorney A received an email from his U.S. counterparts, notifying him that a litigation hold would be issued in the coming days. Attorney A met with VW engineers to discuss defeat devices and, according to the statement of facts, told them to "check" their documents, "which multiple participants understood to mean that they should delete documents prior to the hold being issued."

A similar meeting soon after also resulted in employees checking, then deleting their docs. The attorney later advised some employees against saving relevant documents to VW's system, telling them to instead keep information on a separate USB drive.

Some VW workers even reached out to colleagues at other companies to make sure that information in third party possession was also destroyed.

Thousands of relevant documents ended up being deleted, though most were able to be recovered later.

Does "Check" Mean "Destroy"?

The attorney's actions could make him an unindicted co-conspirator, according to the National Law Journal's Sue Reisinger. Already, six VW employees have been indicted on criminal charges related to the emissions fraud, while federal attorneys have said that investigations into unindicted co-conspirators are continuing.

The key takeaway for in-house counsel: don't instruct employees to destroy information that's about to come under a litigation hold.

Or, giving Attorney A the benefit of the doubt, make sure that employees don't misinterpret your instructions, reading "check" as "destroy." Make sure, too, that such instructions are clear to anyone who might have access to relevant documents. By the end of VW's doc deletion spree, approximately 40 employees had destroyed documents, including several employees who had never met with Attorney A directly, but simply became aware of his "recommendations."

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