Privilege or Work Product Protections – Page 20

U.S. ex rel Baklid-Kunz v. Halifax Hosp. Med. Ctr., No. 6:09-cv-1002-Orl-31TBS, 2012 WL 5415108 (M.D. Fla. Nov. 6, 2012)

Dec 01 2012

Key Insight: Addressing the proper logging of privileged emails, the court adopted the position ?for which there is overwhelming support? (as cited in the opinion) ?that each email in an email string must be listed separately so that the court (and the opposing party) may make an attorney-client privilege determination with regard to each email in the string.?

Nature of Case: violations of False Claims Act

Electronic Data Involved: Emails

Commercial Law Corp., P.C., v. Fed. Deposit Ins. Corp., NO. 10-13275, 2012 WL 137835 (E.D. Mich. Jan. 18, 2012)

Dec 01 2012

Key Insight: Finding metadata related to documents at issue was relevant to the action and that a forensic search of the computers used to generate the documents was ?an appropriate method to locate and extract that information,? but recognizing that at least one of the computers belonged to an attorney, court fashioned a protocol that allowed for forensic examination of the computers while simultaneously protecting potentially privileged information thereon

Electronic Data Involved: Metadata

Adkins v. EQT Prod. Co., No. 1:10cv00041, 2012 WL 5465491 (W.D. Va. May 31, 2012)

Dec 01 2012

Key Insight: Addressing Defendant?s Motion for a Protective Order based on undue burden, court was ?persuaded? that no review was necessary to protect privilege because of the parties? Clawback Order and further found that a reasonable approach in light of Defendant?s assertions of burden (including that processing and review costs could exceed 4 million dollars, as represented by Defendant?s litigation support vendor) was to require Defendant to search and filter its ESI itself (rather than relying on the vendor), with all emails to be designated ?confidential? which would then shift the burden to Plaintiff?s counsel to determine if the ESI produced was over or under inclusive; Court specifically held that ?the court may consider the cost of review of ESI for privileged or responsive information in deciding whether discovery imposes an undue burden or cost on a responding party. Furthermore if the court were inclined to limit discovery based on the burden or cost of the review, I hold that the court could shift the costs of that review, either in whole or in part, to the requesting party.?

Nature of Case: Class action based on alleged entitlement to royalty payments

Electronic Data Involved: Emails, ESI

Morris v Scenera Research LLC, No. 09 CVS 19678, 2011 WL 3808544 (N.C. Super. Ct. Aug. 26, 2011)

Dec 01 2011

Key Insight: Court upheld clawback agreement between the parties which held that inadvertent production would not result in waiver; where parties entered into 26(f) agreement regarding what metadata need be produced but where plaintiff moved to compel production of additional fields because those provided did not allow him to search effectively or identify the source of particular documents, the court entered into an extensive analysis of the ?form? and ?organization? requirements in Rule 34 and withheld ruling until defendant could provide evidence regarding the burden of providing an index that could allow identification of the source of each document

Nature of Case: State employment claims

Electronic Data Involved: ESI, metadata

Pac. Coast Steel v. Leany, No. 2:09-cv-2190-KJD-PAL, 2011 WL 4704217 (D. Nev. Oct. 4, 2011)

Dec 01 2011

Key Insight: [This amended order corrects an omission to the original order, Docket # 335] Where plaintiffs ?simply overlooked? and thus inadvertently produced 3 privileged documents along with 2.3 million other pages, despite conducting ?multiple? privilege reviews and where plaintiff immediately objected to the use of such documents upon their presentation at deposition and thereafter sought their return before the court, the court found that privilege was not waived

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

Tag:Privilege or Work Product Protections