FRCP 26(b)(5)(B) or FRE 502 – Page 10 – Electronic Discovery Law

United States v. Cinergy, Corp., 2009 WL 6327414 (S.D. Ind. Nov. 10, 2009)

Dec 01 2009

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

Eden Isle Marina, Inc. v. United States, 89 Fed. Cl. 480 (Fed. Cl. Aug. 28, 2009)

Dec 01 2009

Key Insight: In this long discovery opinion, court conducted waiver analysis pursuant to Fed. R. Evid. 502 of 8 documents and found that privilege had been waived as to each document for a myriad of reasons including: a finding that production was not inadvertent where the document(s) at issue had been produced (via FOIA or discovery response) on more than one occasion, defendants failure to adequately establish the measures taken to prevent the disclosure of the document(s) at issue, defendants failure to adequately object to the use of the document(s) at deposition, and defendants failure to request the return of the document(s) following discovery of their production or to take other measures to rectify disclosure

Nature of Case: Breach of contract and taking without just compensation

Electronic Data Involved: Privileged emails and hard copy

S.E.C. v. Bank of Amer. Corp., 2009 WL 3297493 (S.D.N.Y. Oct. 14, 2009)

Dec 01 2009

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

AHF Cmty. Dev., LLC v. City of Dallas, 2009 WL 348190 (N.D. Tex. Feb. 12, 2009)

Dec 01 2009

Key Insight: Where city inadvertently produced privileged documents due to its conversion to new software but then allowed its witness to testify regarding those documents at deposition without objection, court held privilege had been waived and declined to compel the documents? return

Nature of Case: Violations of Fair Housing Act

Electronic Data Involved: Email

Convertino v. U.S. Dep?t of Justice, 674 F. Supp. 2d 97(D.D.C. 2009)

Dec 01 2009

Key Insight: Emails between employee and counsel using work computer were protected as privileged where employer did not ban personal use of the company email and where employee was unaware of employer?s regular access to his emails and thus had a reasonable expectation of privacy; privilege was not waived, despite employer?s access to the emails, where employee had ?no intention of allowing?his employer, to read the emails? and disclosure was thus inadvertent and where he took reasonable steps to prevent disclosure by deleting the emails as they came into his account and by filing a motion to intervene to assert the privilege upon learning of his employer?s possession of the emails and their possible disclosure in litigation

Nature of Case: Violations of Privacy Act

Electronic Data Involved: Privileged emails

Am. Coal Sales Co. v. Nova Scotia Power, Inc., 2009 WL 467576 (S. D. Ohio Feb. 23, 2009)

Dec 01 2009

Key Insight: Finding that Plaintiff ?took reasonable precautions to avoid inadvertent disclosures by having two attorneys review documents prior to production; that inadvertent production of one document out of over 2,000 documents produced does not weigh in favor of waiver; that the extent of the waiver was not great because the document had not worked its way into the fabric of the litigation; that Plaintiff took prompt measures to rectify the disclosure; and that the overriding interests of justice and fairness did not conclusively counsel in favor of waiver,? court granted plaintiff?s motion for a protective order preventing use of inadvertently disclosed email; court found ER 502 applicable, despite application of alternative five-factor test by magistrate, and determined that court?s application of ER 502 did not prevent review of magistrate?s ruling where ER 502 and five-factor test were sufficiently consistent (see FN 1)

Nature of Case: Breach of contract, unjust enrichment, fraud

Electronic Data Involved: Email

David v. Signal Int. LLC, 2009 WL 5215326 (E.D. La. Dec. 28, 2009)

Dec 01 2009

Key Insight: Where pro se defendant failed to assert the attorney client privilege when such information was sought and ?selectively disclosed? such information despite warnings from his former counsel, court found defendant had waived the attorney-client privilege as to communications with counsel; addressing defendant?s argument that his disclosures were ?mistakes? (and thus inadvertently produced) court noted defendant?s failure to seek the return of the confidential communications, his lack of effort to ?rectify or withdraw? any of his deposition disclosures, and that the disclosures occurred following warning from counsel and therefore found that ?any argument?that he inadvertently disclosed confidential communications?lacks merit.?

Nature of Case: Class action

Electronic Data Involved: Privileged communications

Mancini v. Ins. Corp. of N.Y., 2009 WL 1765295 (S.D. Cal. June 18, 2009)

Dec 01 2009

Key Insight: Where plaintiffs responded to defendants? requests for production by producing 73 CDs containing the entire universe of documents from an underlying litigation, court held that plaintiffs ?cannot fulfill their discovery obligation?without referencing which specific documents were responsive to which specific request? and ordered plaintiffs to provide defendants with a list of documents responsive to each request

Nature of Case: Breach of insurance contract, failure to indemnify

Electronic Data Involved: ESI

Kandel v. Brother Int?l Corp., 2009 WL 5454888 (C.D. Cal. Dec. 15, 2009)

Dec 01 2009

Key Insight: Where defendants presented evidence that 110 privileged documents were produced despite extensive preventative measures, including key word searching and manual review, and where defense counsel took immediate action to identify all privileged materials that had been produced and to request plaintiff return, sequester, or destroy the documents pursuant to the parties? clawback agreement, court found that ?defendants ha[d] shown their production?was inadvertent within the meaning of?the protective order? and denied plaintiff?s motion for an order declaring 28 documents produced by defendants to be not privileged

Nature of Case: Class action

Electronic Data Involved: Privileged communications

Preferred Care Partners Holding Corp. v. Humana, Inc., 2009 WL 982449 (S.D. Fla. Apr. 9, 2009)

Dec 01 2009

Key Insight: Court declined to find plaintiffs had waived privilege as to three emails where the emails were inadvertently produced (amongst a supplemental production of 10,000 documents), where plaintiffs? counsel took reasonable steps to prevent their production by conducting a pre-production privilege review and where two of the emails had been marked as privileged, and where plaintiff took reasonable steps to rectify the error by requesting the return of each email shortly after discovering its production; court found waiver as to one email where the details of the email where revealed at hearing and in a declaration and thus, the privilege was voluntarily waived

Nature of Case: Claims arising from breach of confidentiality agreement

Electronic Data Involved: Emails

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