Privilege or Work Product Protections – Page 16

Samaritan Alliance LLC v. Commonwealth of Kentucky, Cabinet for Health & Family Servs., (In re Samaritan Alliance LLC), No. 12-5009, 2013 WL 653624 (Bankr. E.D. Ky. Feb. 20, 2013)

Dec 01 2013

Key Insight: Where ?the Cabinet? inadvertently produced privileged emails and later sought a protective order to preclude a finding of waiver, the court held that privilege had been waived citing the delay in requesting the emails? return, the failure to object to use of the emails as a deposition exhibit, the relatively small volume of information within which the emails had been disclosed and the highly relevant content of the emails at issue

Nature of Case: Medicaid reimbursement

Electronic Data Involved: ESI

Momentive Specialty Chems., Inc. v. Alexander, No. 2:13-cv-275, 2013 WL 2151477 (S.D. Ohio May 16, 2013)

Dec 01 2013

Key Insight: Where plaintiff sought to discover whether flash drives containing its sensitive information had been accessed by defendant since he started working for his new employer and also sought production of all relevant information contained on defendant?s laptop, the court indicated that Plaintiff?s expert would be allowed to image and search defendant?s laptop to determine if the flash drives had been accessed and to produce to Plaintiff any ?actual files? from those drives determined to be on defendant?s computer without first allowing defendant to conduct a review for relevance or privilege; as to other relevant documents found on the laptop which were not taken from the at-issue flash drives, the court ordered that any keyword hits be provided to defendant to review before production; to assuage concerns that relevant information would be withheld, court ordered defendant to prepare a log of any documents withheld on relevance grounds to allow the parties to have ?reasoned discussions? regarding those withholdings

Nature of Case: Breach of non-compete agreement, misappropriation of proprietary information

Electronic Data Involved: ESI

Breathablebaby LLC v. Crown Crafts, Inc., No. 12-cv-94 (PJS/TNL), 2013 WL 3350594 (D. Minn. May 31, 2013)

Dec 01 2013

Key Insight: Calling defendants collection efforts ?incomplete and somewhat haphazard? where defendant provided no instruction to its chosen custodians regarding the types of documents to search for, whether to check with subordinates, or how to search for documents, the court reopened discovery so that production could ?commence in accordance with the parties? joint ESI plan,? and ordered the parties to meet and confer regarding search terms and an amended scheduling order; court considered proper logging of emails and ordered defendant to produce an amended privilege log that listed each privileged email contained in an email string separately

Nature of Case: Patent infringement

Electronic Data Involved: Email, misc. ESI

Jo Ann Howard & Assocs. v. Cassity, No. 4:09CV01252 ERW, 2013 WL 3788804 (E.D. Mo. July 19, 2013)

Dec 01 2013

Key Insight: Alleged inadvertent production found to be waiver of privilege where the court found the production was voluntary (noting that the document had been produced twice and was clearly identified in the production log); found that reasonable precautions were not taken to prevent disclosure (citing the failure to label the document as privileged and the low number of other documents in the production and reasoning that blaming an error by the file room staff did not ?excuse? the failure to supervise production); and found that Defendants failed to take prompt measures to rectify the disclosure (citing the failure to claim privilege when asked for further details regarding the document in the course of discovery and the almost seventeen month delay between the ?first voluntary production? and the assertion of privilege)

Nature of Case: RICO, violations of fiduciary duty, gross negligence

Electronic Data Involved: Narrative summary of events composed by Defendant

Surfcast v. Microsoft Corp., No. 2:12-cv-333-JAW, 2013 WL 4039413 (D. Me. Aug. 7, 2013)

Dec 01 2013

Key Insight: Despite confidentiality order that inadvertent production would not result in waiver, court found privilege was waived as to email (originally produced in hard copy) that was privileged ?on its face? (it sought ?lagal? [sic] advice and had indications that there were additional recipients to the email not apparent on the hard copy version, one of which turned out to be an attorney) and which was utilized in a deposition for approximately 30 minutes without Plaintiff?s objection; court reasoned that the confidentiality order could not be ?reasonably? read to protect against waiver under ?any and all circumstances? and that instead it established only that ?mere inadvertent production, standing alone, does not constitute waiver.?

Nature of Case: Patent Infringement

Electronic Data Involved: Email (originally produce in hard copy but also available electronically)

Teledyne Instruments, Inc. v. Cairns, No. 6:12-cv-854-Orl-28TBS, 2013 WL 5781274 (M.D. Fla. Oct. 25, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought to inspect Defendants? computers and devices based on discrepancies discovered between metadata produced by Defendants and metadata extracted by Plaintiff?s expert, court denied the motion upon the explanation that system metadata and application metadata are not always the same and where Plaintiff failed to adequately explain why the discrepancies were cause for concern; court undertook extended discussion of format of production issues related to production ?in the ordinary course of business? and found that Defendants? production of native files (both email and other ESI) with an accompanying spreadsheet providing additional information related to where the documents were kept and how they were organized was sufficient, but, as to ?converted files and non-ESI documents,? ordered a production log identifying to which request each was responsive;? court ordered Plaintiff to produce a categorical privilege log

Nature of Case: Breach of contract, conversion

Electronic Data Involved: ESI, email, hard copy

Franco-Gonzalez v. Holder, No. CV 10-2211-DMG (DTBx), 2014 WL 8116823 (C.D. Cal. May 3, 2013)

Dec 01 2013

Key Insight: Court partly granted plaintiffs? motion to compel, requiring government: (1) to re-produce all documents it had produced in a “locked” password-protected file either as they were kept in the ordinary course or organized and labeled to correspond to document requests, (2) as to other documents government had previously re-produced, to provide an index identifying, by date of production and bates number, which documents each reproduction was meant to replace, and whether any documents were new, and (3) as to documents from which government had redacted on the basis of non-responsiveness and not on the basis of any privilege, to produce unredacted versions of such documents

Nature of Case: Class action concerning government’s detention and removal of immigrants with mental issues

Electronic Data Involved: Various documents related to over 200 detainees, includingi A-file, medical documents, records of proceedings and database information

Transamerica Life Ins. Co. v. Lambert, No. 4:12-CV-1253 CAS, 2013 WL 4028275 (E.D. Mo. Aug. 7, 2013)

Dec 01 2013

Key Insight: Court granted cross-claim plaintiff’s motion to compel cross-claim defendant to produce computer and cell phone used by decedent by shipping those devices from Jonesboro, Arkansas to St. Louis, Missouri (at cross-claim plaintiff’s expense) for forensic examination because cross-claim defendant’s production of copies of cell phone text messages and a non-forensic copy of the computer hard drive were insufficient to respond to plaintiff’s request for production of the devices themselves, since the copies did not allow for forensic examination of the devices, and because the slight inconvenience to cross-claim defendant in not having access to the cell phone and computer for a period of time was outweighed by the significant additional expense cross-claim plaintiff would incur if she were required to examine the devices in Jonesboro

Nature of Case: Probate matter

Electronic Data Involved: Computer and cell phone used by decedent

Mycone Dental Supply Co., Inc. v. Creative Nail Design, Inc., No. C-12-00747-RS (DMR), 2013 WL 478053 (N.D. Cal. Sep. 4, 2013)

Dec 01 2013

Key Insight: Court denied third party’s request for return of allegedly privileged letters between third party and its patent lawyer because third party did not promptly take reasonable steps to rectify the error when it sent a clawback letter 49 days after it discovered the disclosure of at least one of the disputed documents during a Rule 30(b)(6) deposition; court rejected third party?s excuses and stated that third party ?should have recalled the document that was used in the deposition immediately after the deposition and then conducted a more thorough and timely investigation into the rest of the production after the initial clawback request?

Nature of Case: Patent infringement

Electronic Data Involved: Nine attorney letters totaling approximately 58 pages

Mayor of Baltimore v. Unisys Corp., No. JKB 12-614, 2013 WL 4833841 (D. Md. Sep. 10, 2013)

Dec 01 2013

Key Insight: Court denied city’s motion for spoliation sanctions, without prejudice, in light of the evidence offered by Unisys that an unadulterated copy of the pre-litigation version of the software still existed; court ordered parties to meet and confer in person to address the issues the city had encountered with the software and reconstructng the testing environment, attempt to resolve defendant’s work product and attorney client privilege claims, and prepare a joint report to the court summarizing the meet and confer

Nature of Case: Breach of contract, breach of express warranties, and intentional misrepresentation claims relating to the development of a tax software system

Electronic Data Involved: Pre-litigation version of the tax software, interim software files, source code

Tag:Privilege or Work Product Protections