Key Insight: clawback, claw back, waiver, inadvertent disclosure
Nature of Case: RICO, Personal Injury, Product Liability
Keywords: clawback, claw back, waiver, waived, inadvertent disclosure, inadvertence, attorney-client privilege
Key Insight: Applying Fed. R. Evid. 502, court found Defendants? inadvertent inclusion of privileged information in the Administrative Record did not waive privilege where declarations of persons with ?sufficient personal knowledge? established the inadvertence of the inclusion where, in light of the multiple levels of review of the documents and the relevant circumstances including the ?sheer number of pages and compressed timeframe,? the court found Defendant had undertaken reasonable steps to prevent disclosure, and where Defendants took action to rectify the error within three weeks of the disclosure
Nature of Case: Administrative law
Electronic Data Involved: Administrative Record
Key Insight: Employer must produce company-wide documents without geographic limitations when all employees are subject to same leave of absence policies.
Nature of Case: workplace discrimination
Electronic Data Involved: General request for production and interrogatories
Keywords: employing unit, geographic scope, work unit, FMLA, scope of discovery, relevancy
Key Insight: Method of production requiring out-of state travel not contract breach and retention of counsel not enough to show material is privileged
Nature of Case: breach of contract, consumer protection act litigation
Electronic Data Involved: audit documents
Keywords: proportionality, foreign parent, method of production, privilege determination
Key Insight: failure to have a third party preserve relevant data
Nature of Case: request for a permanent injunction to block film distribution
Electronic Data Involved: text messages
Keywords: third party, spoliation, control, adverse inference, sanctions, practical ability, intent to deprive, subpoena
Key Insight: work product protection does not apply to investigation or handling of underlying claim in a bad faith case.
Nature of Case: bad faith insurance claim
Electronic Data Involved: Insurance claim file including work product and possibly privileged documents
Keywords: work product, underlying claim, investigation, bad faith, privilege log
Key Insight: Whether FRE 502 applies, whether production was inadvertent, interplay between FRE 502 and clawback agreement, whether production was completely reckless, specificity requirements of clawback agreement
Nature of Case: breach of contract
Electronic Data Involved: e-mail
Keywords: reckless, clawback agreement, waiver, privilege, inadvertent production, court order, log
Key Insight: Whether a determination of an inadvertent production of documents was erroneous or that the attorney didn’t follow reasonable steps to prevent disclosure.
Nature of Case: Personal Injury, insurance bad faith
Electronic Data Involved: Inadvertently produced documents, produced work product/ACP
Keywords: work product, inadvertent disclosure, claw back, reasonable steps to avoid disclosure
Key Insight: Attorneys on both sides had used multiple boilerplate objections when responding to discovery requests. Judge considered sanctions, but did not sanction either side. Was to be considered a warning about using boilerplate objections though.
Nature of Case: Breach of Warranty
Electronic Data Involved: Various ESI
Keywords: boilerplate; objections
Key Insight: Waiver of privilege for documents inadvertently posted to publicly accessible Box.com location
Nature of Case: insurance coverage litigation
Electronic Data Involved: Box.com uploads
Keywords: Box.com, privilege waiver, publicly accessible, account permissions, file sharing
Identified State Rule(s): Va. Sup. Ct. R. 4.1(b)(6)(ii)
Identified Federal Rule(s): FRE 502(b)
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