FRCP 26(b)(5)(B) or FRE 502 – Page 12 – Electronic Discovery Law

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

Silverstein v. Fed. Bureau of Prisons, 2009 WL 4949959 (D. Colo. Dec. 14, 2009)

Dec 01 2009

Key Insight: Defendants waived claims of privilege as to specific memorandum where, despite initially identifying the memorandum as privileged and placing it on the privilege log, defendants subsequently produced the memorandum and, upon realizing their mistake, failed to properly and timely re-assert the privilege or to take reasonable steps ?rectify the erroneous disclosure?; waiver was intentional where defendant failed for nearly 11 months to clarify the status of the document following its production despite a ready ability to do so and, where plaintiff was prejudiced as a result, court found ?fairness dictat[ed]? that plaintiff be allowed to proceed with discovery and that ?to the extent questions and documents ?concern the same subject matter? as that disclosed in the [memorandum], ?they ought in fairness to be considered together.??

Nature of Case: Constitutional claims

Electronic Data Involved: Privilege memorandum

Synergetics USA, Inc. v. Alcon Labs., Inc., 2009 WL 2016795 (S.D.N.Y. July 9, 2009)

Dec 01 2009

Key Insight: Court granted defendants? motion for the return of privileged documents where the documents were inadvertently produced following a ?multi-layered? review, where defendants promptly requested the return of the documents within three days of learning of their disclosure, and where ?fairness would not be offended by restoring immunity to [the] documents;? some documents subject to defendants? motion were determined not to be privileged and thus were not subject to return

Nature of Case: Violation of antitrust laws by tying sales of light tubes to sales of Accurus cassettes, predatory pricing

Electronic Data Involved: Emails

Smith v. Life Investors Ins. Co., 2009 WL 2045197 (W.D. Pa. July 9, 2009)

Dec 01 2009

Key Insight: Where defendant performed electronic search ?without plaintiff?s input? and then refused to produce its search terms claiming attorney work product, court cited Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 262 (D.Md.2008), for the proposition that ?the party performing the search had a duty to demonstrate that its methodology was reasonable? and, noting that ?a thorough explanation of the search terms and procedures used would be a large step in that direction,? granted plaintiff?s motion to compel; court granted Plaintiff?s Motion to Resolve a Disputed Claim of Privilege Pursuant to Fed. R. Civ. P. 26(b)(5)(B) finding the documents at issue were not subject to protection and need not be returned to defendant

Nature of Case: Class action involving “interpretation fo the term ‘actual damages’ in a supplemental cancer insurance policy”

Electronic Data Involved: Search terms

Relion v. Hydra Fuel Cell Corp., 2008 WL 5122828 (D. Or. Dec. 4, 2008)

Dec 01 2008

Key Insight: Finding that plaintiff ?did not pursue all reasonable means of preserving privilege? court found that attorney client privilege was waived when plaintiff unintentionally produced two privileged emails in hard copy despite conducting a privilege review and because plaintiffs failed to discover the production until revealed by defendants despite having both paper and electronic, text-searchable copies of the documents produced

Electronic Data Involved: Email

Reckley v. City of Springfield, 2008 WL 5234356 (S.D. Ohio Dec. 12, 2008)

Dec 01 2008

Key Insight: Court declined to find waiver of inadvertently produced emails pursuant to ER 502(b) where some of the emails were marked attorney-client privileged, where counsel took prompt steps to claim the privilege and seek their return, and where the disclosure ?took place in the context particularly intended to be addressed by Fed. R. Evid. 502, the production of electronically stored information.?

Electronic Data Involved: Emails

St. Cyr v. Flying J, Inc., 2008 WL 2097611 (M.D. Fla. May 16, 2008)

Dec 01 2008

Key Insight: Court concluded that FRCP 26(5)(B) applied not only to ESI but to paper documents as well, and set out lengthy quote from advisory committee’s note; court denied plaintiff’s motion in limine to exclude evidence of plaintiff’s communications with expert, finding that plaintiff had waived work product protection by voluntarily producing the documents at expert’s deposition

Nature of Case: Negligence and strict liability

Electronic Data Involved: Letter and email produced in hard copy form

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