FRCP 26(b)(5)(B) or FRE 502 – Electronic Discovery Law

Lukis v. Whitepages Incorporated (N.D. Ill.)

Apr 23 2021

Key Insight: Plaintiff filed a Motion to Compel and to Extend Fact Discovery Deadline after Defendant refused to substantively respond to Plaintiff’s discovery requests. Similarly, Defendant also had filed Motion to Compel Plaintiff to respond to its discovery requests regarding online account information, social media and browser history. The Court granted Plaintiff’s Motion(s) and partially granted Defendant’s Motion to Compel. The fact discovery deadline in the matter was extended to approximately two months after the Court’s order(s).

Nature of Case: Class Action Lawsuit

Electronic Data Involved: Social Media, Online Account History, Privacy Settings on Websites, Internet Browser History

Case Summary

Oracle USA, Inc. v. Rimini Street, Inc. et al. (D. Nev. 2020)

Sep 25 2020

Key Insight: Plaintiff filed a Motion to Compel based on Defendant’s (categorical) objections and assertion of attorney-client privilege over (software) source code in responding to discovery requests; Plaintiff specifically cited Defendant’s failure to provide an itemized privilege log for its objections. Defendant filed a Motion to seal the redacted information that it provided to Plaintiff despite the privilege objections.

The Court upheld Defendant’s objections, noting that objection(s) need not be in the form of a privilege log. Moreover, the Court granted the Defendant’s Motion to Seal the redacted information that it provided to Plaintiff despite its objections.

Nature of Case: Intellectual Property, Copyright Infringement

Electronic Data Involved: Source Code

Case Summary

In re Aenergy, S.A. (S.D.N.Y. 2020)

Apr 03 2020

Key Insight: The primary purpose of an email must be to secure legal advice to be privileged. It is not enough to copy counsel on the email. If requests in the email are directed to non-legal employees and counsel does not weigh in, it cannot be said that the primary purpose is to seek legal advice. When it is unclear whether a document is providing legal advice or is driven by business or negotiation considerations, attorney-client privilege will not be extended to the document.

Categorical privilege logs must provide sufficient information to evaluate the privilege claim. The party’s vague and repetitive privilege log along with its attempts to claw-back unprivileged documents led to a loss of credibility with the court. The court ordered a re-review of its privilege determination with a revised document-by-document privileged log.

Nature of Case: Fraud, Contract Dispute

Electronic Data Involved: Email

Case Summary

Shotwell, et al. v. Zillow Group Inc., et al. (Western Washington, 2019)

Nov 07 2019

Key Insight: detailed stipulation of the discovery plan

Nature of Case: violation of the securities exchange act

Electronic Data Involved: all relevant discovery

Keywords: stipulation, discovery plan

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Bellamy v. Wal-Mart Stores, No. SA-18-CV-60-XR (W.D. Tex., 2019)

Aug 19 2019

Key Insight: Properly clawed back privileged documents may not be relied upon for evidence in a case. However, if the contents of these clawed back documents demonstrates bad faith discovery conduct, then sanctions can still be awarded.

Nature of Case: slip-and-fall injury

Electronic Data Involved: inadvertently produced privileged documents

Keywords: clawback, bad faith, intent to deprive

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Laub v. Horbaczewski, No. 2:17-CV-06210 JAK (KSx) (C.D. Cal. July 30, 2019).

Jul 30 2019

Key Insight: Did not withhold irrelevant texts. Judge denied clawback for relevance.

Nature of Case: Contract

Electronic Data Involved: Text Messages

Keywords: clawback, relevance

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Heartland Consumer Products LLC v. Dineequity, Inc. (S.D. Ind., 2018)

Aug 14 2018

Key Insight: Attorney on cc: line is not prima facie evidence email is not privileged

Nature of Case: Trademark Infringement

Electronic Data Involved: E-mail

Keywords: Privilege

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Pinkham v. Coca-Cola Refreshments USA, Inc. (S.D. Ind, 2018)

Aug 13 2018

Key Insight: Privilege Waiver if:unintentional, same subject matter and in fairness considered together

Nature of Case: Negligence

Electronic Data Involved: Videos

Keywords: Privilege, Waiver

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BlackRock Balanced Capital Portfolio v. Deutsche Bank National Tr. Co. (S.D.N.Y., 2018)

Jul 23 2018

Key Insight: Privilege waived after failure to provide sufficient descriptions on privilege log

Nature of Case: Securities Fraud

Electronic Data Involved: E-mails

Keywords: Privilege log, waiver

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Terry v. Register Tapes Unlimited (E.D. Cal., 2018)

Mar 27 2018

Key Insight: Defendant’s production was held to be inadequate due to only producing 1k out of tens of thousands, and not providing a signed verification that the production was full and complete.

Nature of Case: Contract

Electronic Data Involved: financial records, documents

Keywords: inadequate production, signed verification, trade secrets

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Tag:FRCP 26(b)(5)(B) or FRE 502