Privilege or Work Product Protections – Page 18

Stooksbury v. Ross, No. 3:09-CV-498, 2012 WL 3779113 (E.D. Tenn. Aug. 31, 2012)

Dec 01 2012

Key Insight: Addressing post-judgment discovery issues, including plaintiff and receiver?s request to have certain hard drives imaged, court rejected defendants? claim that certain computers contained privileged information where those assets were sold to a third-party and thus any privilege was waived; court further ordered that personal computer and ipad belonging to an individual defendant should be imaged for preservation purposes, to be retained by the expert performing such imaging pending further orders from the court

Electronic Data Involved: Business and personal hard drives and ipad

Kilopass Tech., Inc. v. Sidense Corp., No. C-10-02066 SI, 2012 WL 1534065 (N.D. Cal. May 2, 2012)

Dec 01 2012

Key Insight: Conducting waiver analysis pursuant to Fed. R. Evid. 502(b), court found that plaintiff?s efforts to preclude disclosure were not reasonable where plaintiff claimed the inadvertent disclosure was the result of mistakes on the party of the party, its counsel, and its vendor, including the client?s failure to provide names of all law firm with which it had worked, the vendor?s failure to run a privilege search on all production batches, and counsel?s failure to adequately review the documents identified for production before providing them to opposing counsel; court also relied on the large number of documents inadvertently produced?more than one in 50?reasoning, ?[t]he high proportion of privilege documents evidences a failure on Kilopass?s part to properly screen the documents.?

Nature of Case: Patent infringement

Electronic Data Involved: ESI

Navajo Nation v. United States, —Fed. Cl.—, 2012 WL 5398792 (Fed. Cl. Nov. 6, 2012)

Dec 01 2012

Key Insight: To settle disagreement between the parties, court entered discovery order addressing several issues including format of production, categories of ESI presumptively exempt from discovery absent a showing of good cause, and inadvertent production, among others

Electronic Data Involved: ESI

United States v. Hamilton, 701 F.3d 404 (4th Cir. 2012)

Dec 01 2012

Key Insight: Use of work email waived marital privileged where, despite the lack of a computer usage policy at the time the emails were sent, the policy in effect at the time of the investigation stated that there was no expectation of privacy as to emails sent, received, accessed or STORED on the system and where the defendant ?did not take any steps to protect the emails in question, even after he was on notice of his employer?s policy permitting inspection of emails stored on the system at the employer?s discretion.?

Nature of Case: Criminal

Electronic Data Involved: Emails sent from workplace computer

Blythe v. Bell, No. 11 CVS 933, 2012 WL 3061862 (N.C. Sup. Ct. July 26, 2012)

Dec 01 2012

Key Insight: Where defendants hired an inexperienced vendor/consultant to identify potentially responsive ESI using search terms provided by plaintiffs and produced 3.5 million documents (which included privileged information) without further review save the attempted removal of documents containing the ?hickorylaw.com? extension (which proved unsuccessful), the court acknowledged a five-factor test to analyze the question of waiver, indicated the question of whether reasonable precautions were taken was controlling, and found that privilege had been waived where defendants’ efforts to guard against waiver were insufficient, particularly in light of the high volume of ESI which should have prompted more diligent efforts; court considered whether waiver was appropriate where defendants sought assistance from an outside consultant but found that counsel?s supervision of that consultant was insufficient: ?But, the court also concludes that efforts by a consultant demand a degree of oversight that is absent here.?

Electronic Data Involved: ESI

Goldstein v. Colborne Acquisition Co., No. 10 C 6861, 2012 WL 1969369 (N.D. Ill. June 1, 2012)

Dec 01 2012

Key Insight: President and owner of corporation waived privileged as to emails on company servers by consenting to the sale of all company assets, including the company?s servers and emails, without asserting his privilege; shareholders/officers of corporation waived privilege as to messages sent from company email where subjective belief that their communications were confidential was not reasonable in light of company?s email policy which claimed ownership of emails on company systems and reserved the right to access them; court?s analysis applied Asia Global Crossing factors, but acknowledged that privilege waiver inquiries require case-by-case analysis

Nature of Case: Claim of fraudulent sale of business to avoid judgment

Electronic Data Involved: Allegedly privileged emails

Tadayon v. Greyhound Lines, Inc, No. 10-1326, 2012 WL 2048257 (D.D.C. June 6, 2012)

Dec 01 2012

Key Insight: In this case, following analysis of several discovery motions, Magistrate Judge Facciola wrote of the need for cooperation: “III. High Noon. As explained at the discovery status hearing held on April 30, 2012, there is a new sheriff in town-not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation.FN3 First, the parties will meet and confer in person in a genuine, good faith effort. . . .”; also, court ruled that where Clawback agreement imposed no conditions on right to recall privileged documents, defendant could do so irrespective of alleged negligence

Nature of Case: Patent Infringement

Electronic Data Involved: All discovery

United States v. Comty. Health Ctr. Of Buffalo, No. 05-CV-237A(F), 2012 WL 3136485 (W.D.N.Y. Aug. 1, 2012)

Dec 01 2012

Key Insight: Where plaintiff was able to recover potentially relevant ESI on defendants? backup tapes which had been produced to plaintiff without restriction following defendants erroneous determination that no responsive documents were contained thereon (as the result of using insufficient software to read the data) and where plaintiff therefore sought unrestricted access to the information, except for privileged documents, and for defendants to pay plaintiff?s cost to review the information, the court determined that defendants? production of the tapes waived their objections to Plaintiff?s efforts to locate responsive information but that the failure to identify potentially responsive documents was not in bad faith and that the information on the tapes was not reasonably accessible and denied Plaintiffs? motion for reimbursement for the cost of reviewing the tapes

Nature of Case: False Claims Act

Electronic Data Involved: ESI on “back-up magnetic tapes”

SEC v. Mercury Interactive LLC, No. C 07-02822 WHA, 2012 WL 4466582 (N.D. Cal. Sept. 25, 2012)

Dec 01 2012

Key Insight: Where, the SEC mistakenly deleted documents based on a miscommunication/misunderstanding with the producing party including the mistaken belief that the documents were maintained elsewhere (e.g. by the producing party or its counsel) and thereafter could not produce them when requested, the magistrate judge found that the deletion was not in bad faith and that an adverse inference was not warranted where defendants failed to show the relevance of the missing documents; on appeal the District Court denied defendants? motion for relief from the magistrate judge?s order

Nature of Case: SEC investigation

Electronic Data Involved: ESI

Chevron Corp. v. Wienberg Group, No. 11-406 (JMF), 2012 WL 4480697 (D.D.C. Sept. 26, 2012)

Dec 01 2012

Key Insight: Addressing the state of the ?modern privilege log? Judge Grimm noted the strong trend toward mechanically produced privilege logs with boilerplate information which do not sufficiently describe the documents and the nature of the privilege and ordered defendant to produce factual work product and to properly describe the redacted portions and indicated that he would hold defendant to their 26(g) obligations ?ruthlessly?

Nature of Case: Environmental damages

Electronic Data Involved: Privileged/work product ESI

Tag:Privilege or Work Product Protections