Privilege or Work Product Protections – Page 12

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

Fid. Nat?l Title Ins. Co. v. Captiva Lake Invs., L.L.C., No. 4:10?CV?1890 (CEJ), 2015 WL 94560 (E.D. Mo. Jan. 7, 2015)

Dec 01 2015

Key Insight: Where inspection by court-appointed specialist revealed that plaintiff deleted emails, failed to institute a litigation hold, and delayed completing a comprehensive search of its electronic files, events which defendant and the court would not have known about but for the inspection, the court said plaintiff was subject to sanctions for failing to secure relevant emails and for prejudicial delay in production of discoverable material and that the court would instruct jurors that they may, but are not required to, assume the contents of deleted emails would have been adverse to the plaintiff, but the court would also allow for plaintiff to put on rebuttal evidence showing ?an innocent explanation of its conduct.? Additionally, the court ordered plaintiff to pay one-half of the reasonable costs of the inspection and to pay defendant?s reasonable attorneys? fees associated with bringing the sanctions motion.

Nature of Case: Insurance Coverage Dispute

Electronic Data Involved: ESI, database contents

Thermoset Corp. v. Building Materials Corp. of Am., No. 14-60268-CIV, 2015 WL 156310 (S.D. Fla. Apr. 8, 2015)

Dec 01 2015

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

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)

Nieman v. Hale, No. 3:12-cv-2433-L-BN, 2014 WL 1577814 (N.D. Tex. Apr. 21, 2014)

Dec 01 2014

Key Insight: Finding that plaintiff failed to meet the high burden of proof required to justify spoliation sanctions under Rule 37 and/or the court’s inherent powers, as plaintiff’s briefing was “entirely devoid of evidence, either direct or circumstantial, that would establish the bad faith required,” court denied plaintiff’s motion for sanctions and further noted that Rule 37(e) protected defendants from sanctions to the extent that the entries allegedly missing from defendants’ privilege log resulted from a server crash

Nature of Case: Retaliation claims

Electronic Data Involved: Email

In re Uehling, No. 1:14-mc-00009-LJO-BAM, 2014 WL 1577459 (E.D. Cal. Apr. 17, 2014)

Dec 01 2014

Key Insight: Court denied defendant’s motion to compel nonparty to answer deposition questions and produce documents, finding that nonparty’s burden of producing copy of external hard drive containing 9.47 gigabytes of information was substantial as the material would need to be reviewed for privilege and for potential redaction and withholding based on confidentiality, privacy and proprietary information purposes, the benefit of the documents to defendant was “minimal,” and defendant had an alternative source for the information sought (i.e., the plaintiff)

Nature of Case: Insurance coverage dispute

Electronic Data Involved: Hard drive that non-party witness provided to DOJ in the course of the DOJ’s investigation of plaintiff

In re Fundamental Long Term Care, Inc., 515 B.R. 874 (Bankr. M.D. Fla. 2014)

Dec 01 2014

Key Insight: Concluding that inadvertent production did not waive privilege, court rejected bankruptcy trustee’s argument that party waived privilege because it had not taken any — or perhaps enough — action to have the privileged documents removed from the district court’s electronic docket, noting that measures taken to rectify an inadvertent disclosure is only one of five factors courts consider in determining whether privilege has been waived and other four factors weighed against a finding of waiver

Nature of Case: Adversary proceeding in bankruptcy case

Electronic Data Involved: Privileged ESI

Fasteners for Retail, Inc. v. DeJohn, No. 100333, 2014 WL 1669132 (Ohio Ct. App. Apr. 24, 2014)

Dec 01 2014

Key Insight: Trial court abused its discretion in ordering forensic imaging of defendants’ computer hard drives, as record did not demonstrate that documents plaintiff sought were being unlawfully withheld by defendants and not available from plaintiff’s own information or other sources, and in failing to set out an appropriate protocol to govern the forensic imaging process and protect defendants’ confidential information and preserve any private or privileged information

Nature of Case: Patent infringement, false advertising, misappropriation of trade secrets, breach of employment agreements

Electronic Data Involved: Computer hard drives

L-3 Commc?ns Corp. v. Jaxon Eng?g & Maintenance, Inc., No. 10?cv?02868?MSK?KMT, 2014 WL 3732943 (D. Colo. July 29, 2014)

Dec 01 2014

Key Insight: Where special master was appointed to review tens of thousands of documents listed on defendants? privilege log and issue a report and order after determining, as to each document, whether the document was subject to a claim of work product, attorney-client privilege, spousal privilege or ?so intensely personal and so utterly irrelevant that they should be withheld from production,? district court painstakingly reviewed special master’s report de novo with respect to specified documents subject to objection by the parties and made final rulings

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: ESI stored on computer hard drives

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

Tag:Privilege or Work Product Protections