Privilege or Work Product Protections – Page 13

First Senior Fin. Group LLC v. ?Watchdog,? No. 12-cv-1247, 2014 WL 1327584 (E.D. Pa. Apr. 3, 2014)

Dec 01 2014

Key Insight: Court applied four-part test to determine that defendant acted intentionally and in bad faith to suppress or withhold relevant evidence, but because the prejudice to plaintiffs resulting from the spoliation appeared minimal and plaintiffs did not present any arguments as to how the spoliation prejudiced the ultimate merits of their case, court would only require defendant to pay the cost of the independent computer forensics expert and attorneys’ fees associated with plaintiffs’ motion for spoliation sanctions; court denied all other relief and sanctions sought by plaintiffs

Nature of Case: Defamation, tortious interference with business relationships, civil conspiracy, violations of the Lanham Act

Electronic Data Involved: ESI, computer hard drive

PersonalWeb Techs., LLC v. Google Inc., No. C13-01317 EJD (HRL), 2014 WL 4088201 (N.D. Cal. Aug. 19, 2014)

Dec 01 2014

Key Insight: Among other rulings on the parties? respective discovery motions, the court: (1) denied plaintiff?s request for an order compelling defendants to produce document retention policies and litigation hold notices issued in the case, because litigation hold notice was protected as attorney-client communication and/or work product and burden of producing requested material, however minimal, outweighed its likely benefit; court noted that plaintiff waited over one year to follow up on particular request, relevance of material to case merits was dubious, and timing of motion following court?s finding that plaintiff had committed spoliation by failing to timely file its litigation hold suggested that plaintiff?s motivation was retaliatory; and (2) denying plaintiff?s request for source code and documents related to newest version of accused product, which version was still in development, since discovery into such material would be premature because an incomplete, non-?live? product cannot be evaluated for infringement in patent litigation

Nature of Case: Patent infringement

Electronic Data Involved: ESI, litigation hold notice, source code

Robinson v. County of San Joaquin, No. 2:12-cv-2783 MCE GGH PS, 2014 WL 3845775 (E.D. Cal. July 31, 2014)

Dec 01 2014

Key Insight: A clearly exasperated court described the parties’ discovery efforts to date, highlighted the inconsistencies/incompleteness in response, “as well as the complete cacophony of the San Joaquin County e-mail systems and retrieval,” and issued one final, specific order to be followed by defendant lest serious sanctions issue; among other things, court ordered defendant to perform computer-by-computer search for all current employees in order that any emails relating to plaintiff’s discrimination claims or job performance from 2007 to present may be produced, acknowledging that substantial work would be required for compliance but that judge was “not responsible for the County’s email systems which apparently have been designed for individual control and with no concern for litigation responsibilities”

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

Bradfield v. Mid-Continent Cas. Co., No. 5:13-cf-222-Oc-10PRL, 2014 WL 4626864 (M.D. Fla. Sep. 15, 2014)

Dec 01 2014

Key Insight: Where plaintiffs? law firm experienced severe power surge that damaged server and firm engaged IT expert who made good faith effort to restore and obtain all data on firm?s computer system, including data responsive to defendant?s document requests, court found that plaintiffs had met their burden of showing that additional ESI was not reasonably accessible because of undue burden or cost, and further determined that circumstances did not warrant forensic examination of firm?s computer system as defendant failed to show good cause for the examination and could not demonstrate that the likely benefit of the discovery sought outweighed the significant burden and expense, considering the importance of the issues at stake and notwithstanding defendant?s offer to bear the financial cost of the forensic examination

Nature of Case: Insurance coverage dispute

Tag:Privilege or Work Product Protections