Privilege or Work Product Protections – Page 17

Prowess, Inc. v. Raysearch Labs. AB, No. WDQ-11-1357, 2013 WL 1976077 (D. Md. May 9, 2013)

Dec 01 2013

Key Insight: Pursuant to FRE 502(b), the court found privilege had not been waived where production of the at-issue document was inadvertent (instead of producing certain documents within a sub-folder, the whole folder was mistakenly produced), where reasonable steps were taken to prevent the disclosure (trained and supervised contract attorneys conducted privilege review and only 16 of 60,000 documents were inadvertently produced) and where reasonable and prompt steps were taken to rectify the error (plaintiff contacted defendant the day after it learned of the inadvertent production)

Electronic Data Involved: ESI (infringement analysis)

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

James v. UMG Recordings, Inc., No. 11-cv-01613-SI (MEJ), 2013 WL 5978322 (N.D. Cal. Nov. 8, 2013)

Dec 01 2013

Key Insight: Where plaintiffs could surely foresee the need to manipulate royalty data but did not specify production in electronic form, and defendant had already twice produced the documents and argued that production of electronically formatted royalty statements would require creation of new documents not currently in existence, court denied plaintiffs’ motion to compel production of the data in electronic format, stating that plaintiffs’ proffered justification that Excel format would be more convenient “falls far short of the mark”; court further denied plaintiffs’ request for receipts data, finding that the burden of reprogramming royalty database and creating new software to extract information far outweighed usefulness of ordering production given that plaintiffs stated they could discern the data by extrapolation

Nature of Case: Consolidated putative class action for breach of contract and other claims filed by recording artists and producers who alleged that defendant underpaid royalties on digital downloads of plaintiffs’ recordings

Electronic Data Involved: Royalty statements in Excel format, receipts from download transactions with vendors

BNP Paribas Mortg. Corp. v. Bank of Amer., N.A., Nos. 09 Civ. 9783(RWS), 09 Civ. 9784(RWS), 2013 WL 2322678 (S.D.N.Y. May 21, 2013)

Dec 01 2013

Key Insight: Where Plaintiff sought the return of inadvertently produced privileged documents pursuant to the parties? Fed. R. Evid. 502(d) order (which required the production to be inadvertent to fall within the protective order), the court considered the Lois Sportswear factors and determined that Defendant used reasonable precautions to prevent disclosure (including training contract attorneys to identify privilege and employing a quality control team) and made prompt efforts to rectify their error and ultimately concluded privilege was not waived (court noted that waiver was also not established pursuant to Fed. R. Evid. 502(b))

Electronic Data Involved: Privileged 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

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

Clark Cnty. v Jacobs Facilities, Inc., No. 2:10-cv-00194-LRH-PAL, 2012 WL 4609427 (D. Nev. Oct. 1, 2012)

Dec 01 2012

Key Insight: Despite inadvertently producing (or discussing without objection) the at-issue document as many as times thirteen times, the court found that privilege was not waived where the parties stipulated that inadvertent production would not result in waiver and where the analysis under Fed R Evid 502 resulted in a finding that reasonable steps were taken to prevent disclosure, including key word searches for privileged documents, and that prompt steps were taken to secure the document?s return upon defendant learning of the inadvertent production; notably, it appeared that the document was not identified either because it was labeled ?client-attorney? rather than ?attorney-client?

Nature of Case: Alleged gross mismanagement of construction project result in significant costs to plaintiff

Electronic Data Involved: ESI

Tag:Privilege or Work Product Protections