Privilege or Work Product Protections – Page 12

In re Blue Cross Blue Shield Antitrust Litig., No. 2:13-CV-20000-RDP, 2015 WL 10891632 (N.D. Ala. Nov. 4, 2015)

Dec 01 2015

Key Insight: Court held that ?litigation/preservation holds and memoranda (at least in this case) issued by a corporate party to its employees for purpose of giving instruction and direction concerning documents and records to be preserved by those employees, even where that instruction arises from legal advice from counsel, are not shielded by the attorney-client privilege? and ordered production of certain litigation holds, including sections identifying the documents to be preserved, characterizing the litigation holds as ?managerial? and without the protection of attorney-client or work product privileges

Nature of Case: Antitrust

Electronic Data Involved: Litigation holds (i.e., legal holds, record holds)

Baranski v. United States, No. 4-11-CV-123 CAS, 2015 WL 3505517 (E.D. Mo. June 3, 2015)

Dec 01 2015

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

Cason-Merenda v. VHS of Michigan, Inc., 118 F. Supp. 3d 965 (E.D. Mich. 2015)

Dec 01 2015

Key Insight: Court declined to compel Plaintiffs? production of all discovery produced by any party in the case for Defendant?s use where Defendant failed without adequate explanation to maintain all such documents throughout the pendency of litigation due, perhaps, to changes in ownership and legal representation and where Plaintiffs? compilation of such information was work product, but ordered Plaintiff to produce from its database any specifically identified documents at Defendant?s cost

Electronic Data Involved: Contents of Plaintiffs’ discovery database (i.e., the collection of discovery produced by any party during the litigation)

S.E.C. v. Blackburn, No. 15-2451-CJB-SS, 2015 WL 10911438 (E.D. La. Oct. 26, 2015)

Dec 01 2015

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

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

Crissen v. Gupta, No. 2:12-cv-00355-JMS-WGH, 2014 WL 1431653 (S.D. Ind. Apr. 14, 2014)

Dec 01 2014

Key Insight: Court criticized plaintiff for not complying with inadvertent production provision of protective order and ordered plaintiff to delete all copies of the recalled documents and any information gleaned therefrom from its network drive, and further ruled that plaintiff may not use the documents or any work product derived therefrom unless and until it is determined that those documents should have been produced; court further awarded bank its fees and costs in connection with the motion, to be paid by plaintiff’s counsel, because the language of the claw back provision was clear and plaintiff’s counsel not only ignored that language but then took the extra step of reviewing the very documents the bank sought to recall

Nature of Case: Racketeering, fraud, unjust enrichment

Electronic Data Involved: Tax returns, bank documents containing defendants’ personal financial information, and internal bank documents

Shire LLC v. Amneal Pharms., LLC, No. 2:11-cv-03781 (SRC)(CLW), 2014 WL 1509238 (D.N.J. Jan, 10, 2014)

Dec 01 2014

Key Insight: Weighing five factors to resolve the issue of waiver by inadvertent disclosure, court found that the use of analytical software without attorney review did not constitute reasonable steps to prevent inadvertent disclosure, and also faulted defendants? efforts to rectify the error, noting that defendants did not conduct a remedial investigation until after plaintiff alerted defendants that the production appeared to contain privileged documents; court concluded that, in light of the fact that the inadvertent disclosure was the result of a failure to review, justice would be served by a finding of waiver

Nature of Case: Patent infringement

Electronic Data Involved: Documents protected by attorney-client privilege

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

Campbell Alliance Group, Inc. v. Dandekar, No. 5:13-CV-00415-FL, 2014 WL 145037 (E.D.N.C. Jan. 13, 2014)

Dec 01 2014

Key Insight: Court granted plaintiff’s motion for additional, expedited discovery to conduct forensic examination of additional storage devices, and set out in full the parties’ Stipulation Regarding Protocol for Forensic Investigation and Analysis

Nature of Case: Former employer asserted breach of contract and breach of fiduciary duty claims against former employees for alleged violations of post-employment activity restrictions and confidentiality covenants contained in employment agreements

Electronic Data Involved: Various electronic storage devices

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

Tag:Privilege or Work Product Protections