Key Insight: Court approved stipulated protective order allowing defendant to waive privilege and work product protections as to certain categories of documents without also waving ?such privilege and protection regarding other information that may be of interest in related private lawsuits?
Electronic Data Involved: ESI, hard copy
Key Insight: Court denied plaintiff?s request to compel defendant to categorize its production and identify which documents were responsive to which requests where plaintiff and defendant previously agreed that defendant would produce all documents from certain custodians without prior review and where plaintiff therefore could not simultaneously benefit from avoiding the risk that defendant would unilaterally filter out responsive documents while at the same time seeking to have defendant ?provide the kind of classification that plaintiff would have gotten had it made a different choice?
Electronic Data Involved: ESI
Key Insight: Inadvertent production of privileged material by third party pursuant to subpoena waived defendants? privilege protection where third party?s disclosure was found to be tantamount to defendant?s disclosure because of the nature of their relationship and where defense counsel failed to take any steps to prevent the production of privileged materials despite being asked specifically if privilege issues were implicated in the production (to which he answered ?no?) and despite the low volume of materials produced; court noted that although there was no legal obligation for defendants to conduct a post-production review, ?had [they] done so, they might well have noticed the email at issue before Plaintiffs did, and the result in this case might have been different.?
Electronic Data Involved: Privileged email
Key Insight: As sanction for plaintiff?s delayed production of untranslated medical records after the close of discovery, court precluded use of the late-disclosed records upon reasoning that the late disclosure was not substantially justified and resulted in prejudice to the defendants and upon reasoning that to allow such disclosure would result in continued delay of the proceedings in light of likely need to re-open expert disclosure, among other things
Electronic Data Involved: Late produced CD containing untranslated medical records
Key Insight: Where defendants sought to compel plaintiff?s compliance with a clawback provision intended to control the return of inadvertently produced documents but failed to establish the nature of the privilege claimed or the precautions taken to prevent disclosure, court ruled that defendants had failed to establish that the production of any document was ?inadvertent? and denied defendants? motion to compel
Electronic Data Involved: ESI
Key Insight: Where a party to the litigation forwarded an email from his attorney to a third party, the court ruled that the attorney-client privilege had been waived because there was no shared legal interest between the litigant and the third party and thus the common interest doctrine did not apply but held that the protection provided by the work product doctrine had not been waived where the email was forwarded to ?a nonadversary third party? and where there was no basis for finding it likely that the third party would not keep the email confidential
Electronic Data Involved: Privileged email
Key Insight: Where defendant produced responsive documents after the close of discovery and explained that he believed the documents had been previously produced by his prior employer based on his misunderstanding that all documents saved to his personal computer were also saved on the employer?s network (and thus collected from that source), the court reasoned that ?a trial on the merits of the case outweighs and prejudice to the plaintiff?, that the plaintiff had had more than a month to complete the review of the newly produced documents, and that defendant had fulfilled his obligation to supplement discovery and denied defendant?s motion to exclude plaintiff?s use of the documents; court allowed defendant to depose plaintiff for an additional two hours
Electronic Data Involved: Late produced ESI
Key Insight: Where, as a result of the autofill function in email, defendant mistakenly sent a privileged communication to a third party which was thereafter forwarded to opposing counsel in the litigation, court undertook waiver analysis pursuant to ER 502 and found that privilege was not waived where defendant disclosed the communication inadvertently, where defendant?s reliance on ?a system that had worked in particular way in the past? was reasonable to prevent disclosure, and where defendant?s counsel took immediate steps to rectify the error upon learning of the disclosure
Electronic Data Involved: Privileged email
Key Insight: Where the court interpreted defendant?s response to plaintiff?s second motion to compel to mean that defendant had complied with its preservation obligations and may produce additional materials and explicitly required defendant to immediately notify the court if that interpretation was not accurate ? and where that interpretation was not accurate but was not corrected by defendant – court granted plaintiff?s third motion to compel and ordered defendant to produce all ESI and other responsive documents with an affidavit describing the steps taken to ensure such production and warned defendant that if ?counsel makes this kind of mistake again? the court would impose sanctions
Electronic Data Involved: ESI
Key Insight: Where plaintiff produced ESI in .pdf format despite defendants? request for production in native format and later argued the term ?native format? was undefined, court found the term ?native format? was unambiguous and granted defendants? motion to compel the production (and re-production as was necessary) of ESI in native format
Electronic Data Involved: ESI
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