FRCP 26(b)(5)(B) or FRE 502 – Page 4 – Electronic Discovery Law

Lee v. Chicago Youth Ctrs., 69 F. Supp. 3d 885 (N.D. Ill. 2014)

Dec 01 2014

Key Insight: Reasoning that ?[h]aving contented themselves to file a response to the motion to compel that was conclusory and factually and legally unsupported, the defendants must live with the consequences of that decision,? the court found privilege was waived as to two allegedly inadvertently produced emails; court?s analysis also criticized Defendants? attempts to rectify the inadvertent production where, upon being notified of possible inadvertent production, they relied upon their vendor?the same vendor responsible for the inadvertent production in the first place?to search for privileged information which the vendor subsequently missed and also criticized defense counsels? failure to undertake a review of the information themselves: ?There is a good deal of merit to the plaintiff?s contention that defendants? four lawyers, who are members of a firm whose ?website boasts a roster of ?nearly 800 attorneys,? having ?delegated document review to an unidentified outside vendor (particularly after having been specifically advised of a potential problem with the production)? simply cannot be heard to argue that they took ?the kind of prompt reasonable steps to rectify any error in production which should allow them now to assert inadvertence and avoid a finding of waiver.??

Electronic Data Involved: Emails

Stinson v. City of New York, no. 10 Civ. 4228(RWS), 2014 WL 5090031 (S.D.N.Y. Oct. 10, 2014)

Dec 01 2014

Key Insight: Where defendants inadvertently produced two privileged documents along with large volume of ESI, and 14 days later notified plaintiffs of such inadvertent production, and six days after that filed motion for order to show cause to compel plaintiffs to immediately return the privileged documents, court rejected plaintiffs? contention that they should be allowed to retain and review a copy of the privileged documents for the purpose of opposing the privilege claim and ordered plaintiffs to return all copies of the privileged documents to defendants; plaintiffs would be permitted to rely on any material learned prior to defendants? letter in challenging defendants? assertion of privilege

Nature of Case: Section 1983 class action against city, police department commissioner, and police officers, alleging defendants had a policy of issuing unconstitutional summonses in violation of First, Fourth, Fifth, Eighth, and Fourteenth Amendments

Electronic Data Involved: Privileged ESI

Green v. Am. Modern Home Ins. Co., No. 1:14-cv-04074, 2014 WL 6668422 (W.D. Ark. Nov. 24, 2014)

Dec 01 2014

Key Insight: Court granted parties’ Joint Motion for Entry of Agreed Order Establishing Protocol for Production of Electronically Stored Information, which addressed search terms, production format, and various other e-discovery matters

Nature of Case: Insurance coverage

Electronic Data Involved: ESI

Cormack v. United States, No. 13-232C, 2014 WL 3555255 (Fed. Cl. July 18, 2014)

Dec 01 2014

Key Insight: Court found no waiver resulting from the production of a privileged email (work product) in light of the scope of discovery (more than one million pages produced), defendant?s use of ?advanced software to screen for privilege,? and the ?numerous steps? intended to protect privilege as outlined for the court and because counsel sought the email?s return ?within hours? of receiving a filing with the email attached; defendant was also found to be in control of documents in the possession of a ?wholly owned but indirect French subsidiary? in light of the companies? collaboration on the at-issue software as illustrated by the companies? representations to the potential client regarding their collaboration, agreements between the companies, and the close working relationship between the two

Nature of Case: Patent infringement

Electronic Data Involved: Email, documents in possession of non-party

Lawrence v. Dependable Med. Transp. Servs., LLC, No. 2:13-cv-0417-HRH, 2014 WL 2510623 (D. Ariz. June 4, 2014)

Dec 01 2014

Key Insight: Where plaintiffs supported their motion for partial summary judgment with plainly privileged e-mails between defendants and their attorneys, which defendants had inadvertently produced, court granted defendants’ motion to strike and ruled that, because plaintiffs had failed to comply with FRCP 26(b)(5)(B), they would not be allowed to use the e-mails for any purpose

Nature of Case: Fair Labor Standards Act claims

Electronic Data Involved: Privileged e-mails

Galena St. Fund, LP v. Wells Fargo Bank, N.A., No. 12-cv-00587-BNB-KMT, 2014 WL 943115 (D. Colo. Mar. 10, 2014)

Dec 01 2014

Key Insight: Applying FRE 502, court rejected plaintiff?s argument that defendant waived attorney-client privilege by producing 150 privileged documents among production totaling some 208,000 documents consisting of over 2.2 million pages, as defendant established an elaborate protocol for review and production of documents and took reasonable steps to prevent disclosure of privileged documents, demonstrated that the production was inadvertent, and took reasonable steps to rectify the error with reasonable promptness

Ewald v. Royal Norwegian Embassy, No. 11-CV-2116 (SRN/SER), 2014 WL 1309095 (D. Minn. Apr. 1, 2014)

Dec 01 2014

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

Pac. Packaging Prods., Inc. v. Barenboim, No. MICV200904320, 2014 WL 2766735 (Mass. Super. Ct. Jan 31, 2014)

Dec 01 2014

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

Gloucester Twp. Hous. Auth. V. Franklin Square Assocs., No. 12-0953 (RMB/AMD), 2014 WL 3974168 (D.N.J. Aug. 12, 2014)

Dec 01 2014

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

Thornton v. Morgan Stanley Smith Barney, LLC, No. 12-CV-298-JED-FHM, 2013 WL 1890706 (N.D. Okla. May 3, 2013)

Dec 01 2013

Key Insight: Where defendant sought to shift costs based on the expected expense of reviewing and producing the emails which was estimated to be more than $500,000, the court acknowledged that cost could be a legitimate basis for cost shifting under Rule 26(b)(2)(C), but found that the burden of the requested discovery did not outweigh its likely benefit and was not disproportionate to the case and also noted that the defendant had not established that ?a particular level of review is necessary in this case or that a ?claw back? agreement or [FRE] 502 order would not reduce or eliminate the estimated costs?

Electronic Data Involved: Email

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