Catagory:Case Summaries

Holmes v. Petrovich Dev. Co., LLC, 119 Cal. Rptr. 3d 878 (Cal. Ct. App. 2011)

Where plaintiff used her company’s computer to communicate with her attorney despite knowledge of policies prohibiting such use and establishing that employees had no right of privacy as to such materials, the court found that the emails “did not constitute ‘confidential communication between client and lawyer’ within the meaning of Evidence Code section 952” and thus were not privileged and affirmed the holdings of the trial court.

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In re Fontainebleau Las Vegas Contract Litig., 2011 WL 65760 (S.D. Fla. Jan 7, 2011)

In this case, the court found that privilege had been waived as a result of a third party’s voluntary production of servers believed to contain privileged materials without review.

The Term Lenders sought production of documents related to the financing of the construction of the Fontainebleau Resort and Casino in Las Vegas from the third-party parent of Fontainebleau Las Vegas, Fontainebleau Resort, LLC (“FBR”).  FBR resisted production of its documents, albeit without formal motions, until approximately six months after receipt of the subpoena.  During that time, FBR initially alleged that production would be delayed because of the shared status of the servers on which its information was stored and the need to separate its documents from those of other entities by allowing those entities to review all documents stored thereon to determine ownership, privileged status, etc.  FBR had previously raised this issue in the context of an unsuccessful motion to quash similar subpoenas from other banks.  The court’s footnote regarding the shared servers is illuminating:

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Rattray v. Woodbury County, 2010 WL 5437255 (N.D. Iowa Dec. 27, 2010)

In this case, the court imposed sanctions for defendants’ failure to preserve relevant video footage and ordered an instruction allowing the jury to determine whether the recording was destroyed in bad faith and, if so, to infer that it would have been unfavorable to the defendants.  In so holding, the court cited as an important factor that the video was the only recording of what occurred, “which weighs heavier in this case than the lack of actual knowledge that litigation was imminent at the time of the destruction.”

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Willis v. Willis, 914 N.Y.S.2d 243 (N.Y. App. Div. 2010)

Plaintiff filed suit against her former husband and his current wife alleging defamation.  Specifically, plaintiff alleged that defamatory statements had been made in an email addressed to her and sent to her account – an account which was also regularly used by the former couple’s children.  One of the children read the email.  Plaintiff alleged that the act of sending the email to that account constituted publication for purposes of her claim.

In the course of litigation, plaintiff used the same account to communicate with her attorneys.  Defendant sought production of those emails contending that they were not privileged.  Plaintiff sought a protective order.  The trial court ordered their production.  On appeal, the court found that plaintiff “failed to meet her burden of demonstrating … that the email communications … were made in confidence” and reasoned:

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DeGeer v. Gillis, 2010 WL 5096563 (N.D. Ill. Dec. 8, 2010)

Defendants and non-party Huron Consulting Services, LLC could not agree on the proper course of discovery.  After protracted communications consisting of accusations and demands, defendants sought to compel Huron to conduct additional searches for responsive ESI.  The court found that some additional searching was warranted and ordered counsel to meet and confer in person to establish the proper scope.  Citing the parties’ failure to cooperate as a “controlling factor” as to cost-shifting, the court ordered the parties to split the costs, with one exception.

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United States v. Warshak, 631 F.3d 266 (6th Cir. Dec. 2010)

In this lengthy opinion, the court considered the question of whether an account holder has an expectation of privacy as to the contents of his emails.  Answering in the affirmative, the court held that “a subscriber enjoys a reasonable expectation privacy in the contents of his emails ‘that are stored with, or sent or received through, a commercial ISP’” and that “the government may not compel a commercial ISP to turn over the contents of a subscriber’s emails without first obtaining a warrant based on probable cause.”

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Radian Asset Assurance, Inc. v. Coll. of the Christian Bros. of New Mexico, 2010 WL 4928866 (D.N.M. Oct. 22, 2010)

Plaintiff opposed the court’s proposal to order defendant’s production of backup tapes pursuant to an order of non-waiver and argued that defendant should have to search and produce its own electronically stored information (“ESI”) and that the burden and cost of doing so should not be shifted to plaintiff.  Rejecting the notion that such an order amounted to cost-shifting and upon finding the ESI “not reasonably accessible,” the court ordered the tapes’ production pursuant to an order under Rule 502(d).*

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Oxxford Info. Tech., Ltd. v. Novantas, LLC, 910 N.Y.S.2d 77 (N.Y. App. Div. 2010)

In this case, the parties stipulated to a Confidentiality Order requiring that business information exchanged during the course of discovery would be returned or destroyed at the end of litigation.  Relying on the agreement, defendants provided access to “their core business secrets.”  When the case settled, plaintiff’s counsel discovered that defendants’ information had been backed up to “numerous back-up tapes” on their law firm’s computer system.  Plaintiff then sought to modify the confidentiality agreement to allow the firm to retain the information “subject to proposed safeguards designed to protect the confidentiality of the information” in light of the cost of deleting the information from the tapes.  The motion was denied and plaintiff appealed.

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In the matter of amendment of Wis. Stat. §§ 802.10, 804.01, 804.08, 804.09, 804.12, and 805.07, No. 09-01A (Wis. Nov. 10, 2010)

On November 10, 2010, despite the opinion of the Judicial Council Evidence and Civil Procedure Committee that Wisconsin did not need a mandatory confer rule, the Wisconsin Supreme Court entered an order adopting an amendment to Wis. Stat. § 804.01 prohibiting parties from engaging in electronic discovery until after the parties confer regarding several specified issues.  The rule states that “[n]o party may serve a request to produce or inspect under s. 804.09 seeking the discovery of electronically stored information or respond to an interrogatory under s. 804.08(3) by producing electronically stored information, until after the parties confer regarding all of the following, unless excused by the court …”  The mandated issues for discussion include the scope of electronic discovery, the preservation of ESI, the format of production, and the costs of the proposed discovery and the extent to which such costs shall be limited, among other things.  If a party fails to participate or if agreement cannot be reached, judicial intervention may be sought.  The purpose of such a rule, as expressed in its attendant note, is to “manage the costs of the discovery of electronically stored information.”

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