Privilege or Work Product Protections – Page 16

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

Drummond Co., Inc. v. Collingsworth, No. 13-mc-81069-JST (JCS), 2013 WL 6074157 (N.D. Cal. Nov. 18, 2013)

Dec 01 2013

Key Insight: Court evaluated various arguments offered by defendants and email account holders resisting production of requested information and found that defendants did not have standing to move to quash the subpoenas, account holder who was human rights lawyer and US citizen established prima facie case of infringement of her right to freely associate, and other account holders who were non-US citizens did not have First Amendment rights; court limited time frame of certain requests and also determined that, because disclosure of identifying and usage information for the accounts beyond counsel may pose a safety risk to the email account holders and/or their families, defendants were entitled to a protective order prohibiting plaintiff?s counsel from sharing such information beyond counsel of record and their employees

Nature of Case: Motion to quash subpoenas to Google and Yahoo! issued in libel action pending in N.D. Ala.

Electronic Data Involved: Subscriber and usage information associated with four email addresses

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)

Westdale Recap Props., Ltd. v. NP/I & G Wakefield Commons, LLC, No. 5:11-CV-659-D, 2013 WL 5424844 (E.D.N.C. Sep. 26, 2013)

Dec 01 2013

Key Insight: Where producing party defended tardiness of production by explaining it had been awaiting agreement on protocol for ESI, as contemplated in parties? discovery plan, and proposed search terms from plaintiffs to conduct a supplemental search of ESI pursuant to such protocol, court granted in part and denied in part plaintiffs? motion to compel, setting deadlines for plaintiffs to provide different custodians, dates and/or keyword search terms, and for production, resolving that production should be in the form of searchable PDF?s with the option of requesting particular ESI in native format if there is a demonstrable need, and requiring defendant to prepare privilege log meeting requirements of Rule 26(b)(5)(A) and duly signed by counsel for any otherwise responsive documents withheld on grounds of privilege

Nature of Case: Fraud, civil conspiracy, unfair and deceptive trade practices and negligent misrepresentation

Electronic Data Involved: ESI

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

Kickapoo Tribe of Indians of Kickapoo Reservation in Kan. v. Nemaha Brown Watershed Joint Dist. No. 7, No. 06-CV-2248-CM-DJW (D. Kan. Sep. 23, 2013)

Dec 01 2013

Key Insight: Court sustained District’s objection that it did not have duty to produce documents from persons no longer associated with the District who were not parties to the litigation, as plaintiff failed to establish that District had the necessary control over requested documents or that District had legal right to obtain such documents on demand from former District board members, staff or employees; court further denied motion to compel forensic mirror imaging of computers and other electronic devices personally owned by current and former District board members, employees and staff, as District already produced forensic mirror images of two District computers, District lacked possession or control of personally-owned computers, there was no showing that any personally-owned computers of board members, employees and staff were used by those persons for District business, and court had significant concerns about intrusiveness of request and privacy rights of individuals to be affected

Nature of Case: Dispute over water rights

Electronic Data Involved: ESI

Ford Motor Co. v. Mich. Consol. Gas Co., No. 08-CV-13503, 2013 WL 5435184 (E.D. Mich. Sep. 27, 2013)

Dec 01 2013

Key Insight: Magistrate judge evaluated plaintiffs? work product, attorney-client privilege, joint defense and common interest privilege claims, set out various findings and guidelines, and ordered plaintiffs to update their respective privilege logs and produce certain documents; magistrate judge further ruled that, because Ford had earlier produced voluminous documents as they were kept in the usual course of business, it had no further duty under Rule 34 or otherwise to organize and label the documents to correspond with individual requests for production

Nature of Case: Current and former property owners sued former operator of manufactured gas plant

Electronic Data Involved: Environmental investigation, remedy assessment and allocation related documents

Brookfield Asset Mgmt., Inc. v. AIG Fin. Prods. Corp., No. 09 Civ. 8285(PGG)(FM), 2013 WL 142503 (S.D.N.Y. Jan. 7, 2013)

Dec 01 2013

Key Insight: Upon receipt of ?dueling letters? concerning the inadvertent production of privileged information (which had been redacted but could be viewed in the metadata), the court noted that such an event emphasized ?the need for counsel for a producing party to keep a watchful eye over their e-discovery vendors,? but found that privilege was not waived because a Rule 502(d) order had been entered. Indeed, the court identified the ?one decretal paragraph? that stated that ?Defendants’ production of any documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding in any other court, constitute a waiver by Defendants of any privilege applicable to those documents, including the attorney-client privilege ….? and concluded that, ?[a]ccordingly, [Defendant] ha[d] the right to claw back the minutes, no matter what the circumstances giving rise to their production were.? (Emphasis added.)

Great-West Life & Annuity Ins. Co. v. Am. Economy Ins. Co., No. 2:11-cv-02082-APG-CWH, 2013 WL 5332410 (D. Nev. Sep. 23, 2013)

Dec 01 2013

Key Insight: Magistrate judge found that defendant had waived attorney-client privilege as to privileged documents provided to testifying expert for use in preparing his expert report, given that Rule 26(a)(2)(B) requires disclosure of ?the facts or data considered by the witness in forming [his/her opinion(s)],? and expert testified, under oath, that he reviewed the documents he was provided; magistrate judge further ruled that other privileged documents inadvertently produced by defendant were not subject to waiver as parties’ agreed protective order contained strict time line and process for filing motions to challenge claims of privilege after an inadvertent disclosure, and plaintiff did not follow the process

Nature of Case: Insurance coverage dispute

Electronic Data Involved: Privileged documents

Tag:Privilege or Work Product Protections