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

Peterson v. Bernardi, 2009 WL 2243988 (D.N.J. July 24, 2009)

Dec 01 2009

Key Insight: Where plaintiff sought the return of allegedly inadvertently produced privileged documents, court found most documents were not actually privileged and thus not subject to return and noted that even if the documents had been privileged, plaintiff failed to establish that all elements of FRE 502 were met such that waiver did not occur; as to nine documents determined to be ?obviously work product,? and in light of the facts of the case (involving the wrongful conviction of an innocent man), the court found that ?the interests of fairness and justice? demanded their return

Nature of Case: Wrongful imprisonment

Electronic Data Involved: Inadvertently produced communications and other allegedly privileged documents (format unspecified)

Infor Global Solutions (MI), Inc. v. St. Paul Fire & Marine Ins. Co., 2009 WL 2390174 (N.D. Cal. Aug. 3, 2009)

Dec 01 2009

Key Insight: Where out of ?an apparent concern about the court imposed deadline,? plaintiff produced electronic documents without review because of technical difficulties opening certain files and emails and where plaintiff informed no one of the difficulties, sought no extension from the court for production, and did not qualify the production with any ?clawback? notice, court found that plaintiff had waived privilege and granted defendant?s motion to compel

Nature of Case: Insurance

Electronic Data Involved: Privileged ESI

Laethem Equip. Co. v. Deere & Co., 2009 WL 2777334 (E.D. Mich. Aug. 27, 2009)

Dec 01 2009

Key Insight: Court ruled on defendant?s objections to magistrate?s order, including, among other things, addressing issues of privilege pursuant to FRE 502(b) and analyzing the propriety of claims of privilege as to certain categories of documents, including those stored on a server that was available to all employees; court also ordered each party to bear the costs of production for the documents it requested (a direct contradiction to the presumption that the responding party must bear the expense of compliance) where such an order would ?curb [the] bilateral tendency? to broaden discovery demands to include both important and marginal information ?whose primary utility would be found in the burden and cost of production to the other side?

Nature of Case: Breach of contract, statutory violations, tortious interference

Electronic Data Involved: ESI

Whitaker Chalk Swindle & Sawyer, LLP v. Dart Oil & Gas Co., 2009 WL 464989 (N.D. Tex. Feb. 23, 2009)

Dec 01 2009

Key Insight: Where defendant sought protection against disclosure of documents related to the billing dispute with its former attorneys because such production could waive privileges in another, pending case, court ordered production pursuant to prescribed provisions, including a provision that no waiver would result by the compelled disclosures pursuant to Fed. R. Evid. 502

Nature of Case: Billing dispute between counsel and former client

Electronic Data Involved: Information related to billing dispute

Rodriquez-Monguio v. Ohio State Univ., 2009 WL 1575277 (S.D. Ohio June 3, 2009)

Dec 01 2009

Key Insight: Where defendant inadvertently produced one privileged email among thousands of pages and did not actually discover such production until months later, despite plaintiff?s reference to the email in a single spaced 5 page letter, and where upon discovery of the inadvertent production defendant immediately sought the email?s return, court rejected plaintiff?s argument that defendant had waived privilege by failing to seek the email?s return within ten days, subject to the parties? clawback agreement, and ordered the email returned

Electronic Data Involved: Privileged email

Fuller v. Interview, Inc., 2009 WL 3241542 (S.D.N.Y. Sept. 30, 2009)

Dec 01 2009

Key Insight: Court found no waiver of privilege where production was inadvertent, where reasonable steps were taken to protect privileged materials, where the volume of inadvertently produced material was very small (portions of a few pages out of 34,000 pages produced), and where defendants acted quickly to assert the privilege after discovering the inadvertent production

Nature of Case: Termination in violation of Family Medical Leave Act

Electronic Data Involved: Portions of privileged emails

Kumar v. Hilton Hotels Corp., 2009 WL 1683479 (W.D. Tenn. June 16, 2009)

Dec 01 2009

Key Insight: Court endorsed ?middle ground? approach to a determination of the waiver of privilege, as adopted by FRE 502, and ordered the return of privileged and work product documents produced by defendant upon finding that the production was inadvertent, that defendant took reasonable steps to prevent disclosure, that counsel took immediate steps to rectify the error and that ?the number and magnitude of the disclosures in light of the overall production weigh[ed] against waiver?

Electronic Data Involved: Privileged email and hard copy

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

Miyano Mach. USA, Inc. v. Miyanohitec Mach., Inc., 2008 WL 2364610 (N.D. Ill. June 6, 2008)

Dec 01 2008

Key Insight: Court applied balancing test and found that plaintiff?s inadvertent production of single privileged email on CD among 22,000 pages of documents did not effect waiver given expedited nature of discovery, scope of documents produced, limited extent of disclosure and lack of any demonstrable prejudice to defendants

Nature of Case: Trademark infringement, cybersquatting, unfair competition, unfair trade practices

Electronic Data Involved: Privileged email

Spieker v. Quest Cherokee, LLC, 2008 WL 4758064 (D. Kan. Oct. 30, 2008)

Dec 01 2008

Key Insight: Granting leave to refile, court denied plaintiff?s motion to compel production of emails for failure to show their relevance to class certification but rejected defendants? argument that $375,000 cost of production was unduly burdensome in light of amount in controversy where defendant argued claims of named plaintiffs were worth $100,000 or less but plaintiff argued claims of the class exceeded $5 million; court also stated that where defendant was in better position to identify search terms it should do so to reduce volume, that the cost of production versus the amount in controversy did not render email data ?not reasonably accessible,? and that parties should address Rule 502 in any future discussions regarding cost, among other things

Nature of Case: Class action for failure to pay royalties arising from oil and gas leases

Electronic Data Involved: Email

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