Key Insight: required to provide privilege log metadata because log was inadequate
Nature of Case: breach of contract, breach of fiduciary duty
Electronic Data Involved: privilege log metadata
Keywords: privilege log, metadata
Key Insight: While privilege logs are not explicitly required when claiming privilege, they are the best way to properly assert attorney-client privilege
Nature of Case: Contract dispute
Electronic Data Involved: Electronic documents generally
Keywords: privilege log, website, servers, car,
Key Insight: Asserting well supported objection against a relevant request.
Nature of Case: personal injury
Electronic Data Involved: social media accounts, and postings
Keywords: social media records, mental state, postings
Key Insight: Court found privilege had been waived where at-issue documents were intermingled with non-privileged documents and produced in a consecutively numbered batch, where the government provided no information regarding how the documents were reviewed, where there was an almost 2 year delay until the production of the privilege log, where the documents were not marked as privileged, where approximately 10% (58/570) of the documents produced were privileged, where at least one privileged document was used as an exhibit in deposition without objection and where the government did not discover the allegedly inadvertent disclosure for nearly two years; where defendant provided evidence of the cost and burden of restoring backup tapes (14 weeks of work at a cost of approximately $85,400) court concluded that at-issue emails were not reasonably accessible and declined to compel production where plaintiff failed to establish that the emails may contain significant information
Electronic Data Involved: ESI, emails
Key Insight: No waiver of privilege resulting from inadvertent production (as a result of legal assistant?s accidental attachment of the wrong email folder when preparing initial disclosures) where steps to prevent disclosure were reasonable, including custodian?s specific identification of privileged material and trial attorney?s review of all non-privileged docs to be produced and where trial attorney immediately addressed inadvertent disclosure upon her discovery of it and return to her office
Electronic Data Involved: Email
Key Insight: Applying the elements of Fed. R. Evid. 502(b), court concluded that whether production was ?inadvertent? should be determined by asking whether the party intended to produce the document or whether it was a mistake rather than looking at court-identified factors to determine whether the ??inadvertent? element? was satisfied and found: 1) that the at-issue emails were produced by mistake, and thus inadvertently, 2) that reasonable steps to prevent the disclosure were taken where counsel identified the documents as privileged after personally inspecting them but where they were nonetheless produced inadvertently among the other 1,000 pages produced in response to the relevant request, and 3) that prompt steps were taken to prevent the error where counsel informed opposing counsel of the inadvertent production on the same day he discovered it; thus, the inadvertent production did not result in waiver
Nature of Case: Claims arising from defective roofing adhesive
Electronic Data Involved: Emails
Key Insight: District court judge overruled plaintiff’s objection to magistrate judge’s report and recommendation on plaintiff’s motion for sanctions, which found spoliation by defendant in not preserving consul’s mobile phone given that defense counsel knew or should have known that the phone was relevant to the pending litigation, but declined to impose sanctions because there was insufficient evidence of prejudice to plaintiff and plaintiff had failed to pursue opportunities to obtain the information through other methods
Nature of Case: Employment discrimination
Electronic Data Involved: Laptop; text messages and other ESI on mobile phone
Key Insight: After ten days of hearings on Plaintiff?s Emergency Motion for Judgment on All Claims Based upon Defendants? Fraud Upon the Court, court found that defendants violated preservation order and deliberately ignored preliminary injunction requiring defendants to turn over all written or digital materials taken from or generated by plaintiff, or derived in whole or in part from documents generated by plaintiff, that contain customer lists, pricing information or similar information, and not to retain copies of such materials, and that defendants spoliated evidence and committed a fraud upon the court; appropriate sanction was the entry of default against defendants, dismissal of the defendants? counterclaims, and an order requiring defendants to compensate plaintiff for attorneys? fees and costs incurred in litigating the motion; parties to submit memoranda describing their views regarding the extent of the default established and the future course of the litigation
Nature of Case: Distributer sued former employees who formed competing company
Electronic Data Involved: Computers, laptops, hard drives and other electronic storage devices
Key Insight: Court evaluated five factors to determine that defendant’s inadvertent disclosure waived the attorney-client privilege, where defendant did not describe the precautions taken, if any, to prevent the disclosure of privileged information, but instead relied on the purportedly voluminous nature of the production, the disputed letters set forth communications between attorney and client concerning clearly privileged, substantive information relating to the litigation, the letters were produced in the litigation on two separate occasions, and defense counsel waited over three months after the letters’ production before attempting to rectify the disclosures and only discovered the inadvertent disclosure while preparing for a deposition
Nature of Case: Breach of contract
Electronic Data Involved: Privileged letters
Key Insight: Where parties entered into a stipulated protective order approved by the court that contained a provision concerning inadvertent disclosures, and plaintiffs inadvertently produced the protected information on the spreadsheets twice and conceded they were “careless,” court did not find plaintiffs’ conduct to be so “completely reckless” as to warrant a finding of waiver given the totality of the circumstances and particularly the nature of the production, plaintiffs’ prompt request for return of the protected information, and the overriding issues of fairness
Nature of Case: Class action alleging that defendant British Airways violated its frequent flyer program contract by imposing unlawful fuel surcharges on rewards flights
Electronic Data Involved: Spreadsheets prepared by non-testifying, consulting experts
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