Privilege or Work Product Protections – Page 20

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

Dubler v. Hangsterfer?s Labs., 2011 90244 (D.N.J. Jan. 11, 2011)

Dec 01 2011

Key Insight: Where defendant produced privileged emails and sought to preclude waiver arising therefrom, the court rejected defendant?s assertions that it did not intend to waive privilege and, noting the lack of evidence regarding reasonable steps to prevent disclosure and that defendant had not yet requested the return of the documents at issue, found that privilege had been waived

Nature of Case: Employement litigation

Electronic Data Involved: Privileged emails

Datel Holdings, LTD v. Microsoft Corp., No. C-09-05535 EDL, 2011 WL 866993 (N.D. Cal. Mar. 11, 2011)

Dec 01 2011

Key Insight: Where despite reasonable measures to prevent the production of privileged materials a software glitch resulted in the failure to identify privileged portions of emails that were then produced and where, upon learning of the disclosure, counsel acted promptly to rectify the error, the court found privilege had not been waived by the inadvertent production pursuant to FRE 502; court?s analysis included discussion of meaning of ?inadvertent?

Electronic Data Involved: Email chain

Seyler v. T-Sys. N. Amer., Inc., 2011 WL 196920 (S.D.N.Y. Jan. 21, 2011)

Dec 01 2011

Key Insight: Court found no waiver of plaintiff?s claims of privilege resulting from the production of one privileged email where, pursuant to FRE 502(a) the waiver was not intentional as established by the sworn statement of plaintiff?s counsel that he was not aware that the plaintiff?s sister, the other party to the relevant email, was an attorney

Nature of Case: Hostile work environment, retaliation, intentional infliction of emotional distress

Electronic Data Involved: Privileged email

In re Reserve Fund Secs. & Derivative Litig., Nos. 09 MD.2011(PGG), 009 Civ. 4346(PGG), 2011 WL 2039758 (S.D.N.Y. May 23, 2011)

Dec 01 2011

Key Insight: Addressing question of existence of marital privilege as to messages sent and received on work computers, court found that employee had no reasonable expectation of privacy in light of employer?s policy regarding email use and that emails were not protected

Electronic Data Involved: Potentially privileged emails

Schulte v. NCL (Bahamas) Ltd., 2011 WL 256542 (S.D. Fla. Jan. 25, 2011)

Dec 01 2011

Key Insight: Court rejected defendant?s assertion that relevant video surveillance footage was protected as work product as a result of its preservation in anticipation of litigation and pursuant to the direction of counsel where the video was ?made as part of the normal course of surveillance videos made by NCL? and ?was not created in the work product context?

Nature of Case: Slip and fall

Electronic Data Involved: Surveillance footage

In re Clark, 345 S.W.3d 209 (Tex. Ct. App. 2011)

Dec 01 2011

Key Insight: Appellate court concluded that trial court?s order compelling plaintiff?s production of her personal computer and electronic storage devices did not provide sufficient protection for plaintiff?s potentially privileged documents where defendant?s forensic analyst would use search terms such as ?attorney? and ?lawyer? to identify potentially privileged information and, after expressing its confidence that the trial court would vacate its prior order and compel production in a manner that provided adequate protection of privileged information, conditionally granted plaintiff?s petition for mandamus indicating that ?[t]he writ of mandamus shall issue only in the event the trial court fails to act in accordance with this opinion?

Electronic Data Involved: Contents of personal computer, storage devices

Estate of Carlock v. Williamson, 2011 WL 308608 (C.D. Ill. Jan. 27, 2011)

Dec 01 2011

Key Insight: Court found no waiver of privilege where the email at issue was inadvertently produced (as the result of plaintiff?s access to defendants? servers); where defendants took sufficiently reasonable steps to prevent disclosure as evidenced by the parties? ?repeated discussions about key word limitations? and ?broad protective order? and because ?Defendants repeatedly and specifically emphasized their concern over how Plaintiff was handling any attorney-client communications it came across?; and where defendants acted promptly to rectify the problem upon receiving notice of the inadvertent production. Accordingly, court granted defendant?s motion to strike plaintiff?s motion for sanctions which relied on the privileged email but left open plaintiff?s opportunity to re-file upon removing all reference to the privileged message

Nature of Case: Litigation arising from death of inmate while incarcerated

Electronic Data Involved: Litigation hold spreadsheet, privileged email

Tag:Privilege or Work Product Protections