Privilege or Work Product Protections – Page 20

Robinson v. City of Arkansas, Kansas, No. 10-1431-JAR-GLR, 2012 WL 603576 (D. Kan. Feb. 24, 2012)

Dec 01 2012

Key Insight: Addressing the sufficiency of defendant?s search for responsive ESI, among other discovery disputes, court found that defendant failed to conduct a reasonable search and ordered additional searching as specified by the court and that defendant produce mirror images of the computers and external drives of a former supervisor for defendant that was particularly relevant to the litigation (the court called the failure to search his computers ?inexcusable and inexplicable?); court granted protective order precluding defendant?s expert from requirement to produce hardware (computers, etc.) already subject to production by defendant pursuant to court?s order where such duplication was unnecessary and would unnecessarily increase costs

Nature of Case: civil rights and employment law

Electronic Data Involved: ESI

Moore v. Gilead Sciences, Inc., No. C 07-03850 SI, 2012 WL 669531 (N.D. Cal. Feb. 29, 2012)

Dec 01 2012

Key Insight: Court granted in part defendant?s motion for sanctions and ordered an adverse inference where the court determined plaintiff had a duty to preserve and that the deliberate wiping of his hard drive was in bad faith but declined to impose monetary sanctions or dismissal where plaintiff?s actions were not found to be sufficiently egregious, where plaintiff was forthcoming about the spoliation and his reasons (to protect personal and privileged information contained on the work-issued laptop), and where defendant had a substantial amount of the deleted material on backup tapes, etc. because of its backup practices

Nature of Case: Employment litigation

Electronic Data Involved: ESI from laptop

S2 Automation LLC v. Micron Tech., Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3150387 (D.N.M. July 23, 2012)

Dec 01 2012

Key Insight: Over objection of plaintiff, court entered non-waiver and claw-back order pursuant to FRE 502(d)

Electronic Data Involved: ESI

Aventa Learning, Inc. v. K12, Inc., —F. Supp. 2d—, 2011 WL 5438690 (W.D. Wash. Nov. 8, 2011)

Dec 01 2011

Key Insight: Applying Washington State law, court held that return of employer-issued laptop containing attorney-client privileged information without asserting a claim of privilege as to those contents resulted in waiver of privilege; even where privilege was asserted as to certain contents prior to return of employer-issued laptop, privilege was waived where employer?s policies negated expectation of privacy, including as to web based email accessed on the laptop; court?s analysis applied four part test from In re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005)

Nature of Case: Breach of separation agreement, conversion

Electronic Data Involved: Privileged emails

Stambler v. Amazon.com, No. 2:09-CV-310 (DF), 2011 WL 10538668 (E.D. Tex. May 23, 2011)

Dec 01 2011

Key Insight: Where parties agreed on search terms to identify responsive materials and defendants (the producing parties) later argued that the terms had produced overly-burdensome results, court held that defendants had the burden of ?justifying non-production or reduced production? because they had agreed to the terms and that they had failed to ?justify protection under Rule 26(b)(2)(C)(iii)? but, acknowledging the expected costs of review and production, indicated that defendants could choose to produce documents without reviewing the results in light of the ability to identify privilege using key words and the parties? claw back agreement in their protective order; recognizing the potential burden to plaintiffs if defendants chose to produce documents without review, the court indicated the parties could confer to revise search terms if they so chose

Nature of Case: Patent infringement

Electronic Data Involved: 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

Tag:Privilege or Work Product Protections