Privilege or Work Product Protections – Page 22

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

N. Am. Rescue Prods., Inc. v. Bound Tree Med., LLC, 2010 WL 1873291 (S.D. Ohio May 10, 2010)

Dec 01 2010

Key Insight: Addressing several privilege-related issues upon plaintiff?s objections to the magistrate?s order compelling production, court found inadvertently produced email communications resulted in waiver of attorney-client privilege where plaintiffs failed to take reasonable steps to prevent disclosure and to rectify the error upon discovery of the production, noting specifically that plaintiff was aware of the production for a matter of months before taking action only after defendant?s motion to compel

Nature of Case: Misappropriation of trade secrets, false advertising, trademark infringement and related claims

Electronic Data Involved: Privileged emails

Conceptus, Inc. v. Hologic, Inc., No C 09-02280 WHA, 2010 WL 3911943 (N.D. Cal. Oct. 5, 2010)

Dec 01 2010

Key Insight: Where plaintiff had previously produced a particular two page letter in prior litigation but was unaware of that production because it was not used in any deposition or pleading in that case, and where plaintiff?s counsel agreed, in subsequent litigation, to produce those documents that were previously produced in the prior litigation, which included the letter, and did not conduct a privilege review because of the belief that such a review had been conducted before production in the prior litigation, the court found that plaintiff did not take reasonable steps to prevent the disclosure and therefore waived privileged and reasoned, in part, that ?[m]erely asserting that prior counsel inadvertently disclosed the letter does not meet the burden of proof,? citing Plaintiff?s failure to describe the circumstances surrounding the letter?s original production or any steps to prevent the disclosure

Electronic Data Involved: two page letter

Perry v. Schwarzenegger, 2010 WL 1135781 (N.D. Cal. Mar. 22, 2010)

Dec 01 2010

Key Insight: Addressing several objections to the magistrate?s order compelling production of data from non-parties, court held that despite ?minimal? showing of relevance, magistrate did not err in ordering production of data where magistrate weighed the relevance of the data against the burden alleged and ordered appropriate steps to reduce the burden, including limiting the review of documents to those hit by a small set of search terms, waiving respondents? obligations to produce a privilege log, and allowing one respondent to search only its central server rather than 75 individual hard drives following that respondents? showing of undue burden; court rejected petitioner?s objections to the measures taken to reduce the non-parties? burdens

Nature of Case: Litigation surround California’s Proposition 8

Electronic Data Involved: ESI

Current Med. Directions LLC v. Salomone, 2010 WL 714686 (N.Y. Sup. Ct. Feb. 2, 2010)

Dec 01 2010

Key Insight: Court found attorney-client privilege did not protect emails residing on defendant?s server which, along with other assets, was sold to plaintiff in the underlying acquisition where defendant made no effort to delete the emails prior to the acquisition and failed to independently discover that the privilege emails had been produced to him as part of plaintiff?s production, and where evidence indicated that defendant knew, at least generally, the privileged documents had been inadvertently produced but did not seek their return

Nature of Case: Claims arising following acquisition of defendant’s company and his subsequent termination

Electronic Data Involved: Privileged emails

King Pharm. Inc. v. Purdue Pharma L.P., 2010 WL 2243872 (W.D. Va. June 2, 2010)

Dec 01 2010

Key Insight: Where defendant produced a partially redacted document containing four inadvertently unredacted pages, court found that the disclosure met the test of 502(b) and that privilege was not waived ?in light of the low volume of production? and defendant?s prompt action to ?rectify the error? upon learning of the disclosure; court also stated that ?the fact that the document had been reviewed and partially redacted does not by itself prevent the disclosure from being inadvertent? and that ?[t]he nature of the mistake in disclosing a document is not limited by the rules, and logically ought to include mistaken redaction, as well as other types of mistakes that result in disclosure.?

Nature of Case: Patent litigation

Electronic Data Involved: Four unredacted privileged pages of printed presentation

Delta Fin. Corp. v. Morrison, 894 N.Y.S.2d 437 (N.Y. App. Div. 2010)

Dec 01 2010

Key Insight: Where, upon en camera review, the court determined that counsel could not support his claim of privilege as to 55 emails and therefore sanctioned counsel $5000, appellate court affirmed the order and found the lower court had exercised proper discretion ?because [counsel?s] claim that the 55 e-mails were privileged was completely without merit in law and could not be supported by any reasonable argument for the extension, modification, or reversal of existing law.?

Nature of Case: Action to recover damages for breach of contract

Electronic Data Involved: Emails

Kandel v. Brother Int?l Corp., 683 F. Supp. 2d 1076 (C.D. Cal. 2010)

Dec 01 2010

Key Insight: Court found production of privileged documents was ?inadvertent? within the meaning of the parties? stipulated protective order and that the privilege was therefore not waived where defendant took reasonable steps to prevent the inadvertent production, including creating and following a document review protocol, identifying privileged names to assist in the segregation of potentially privileged documents, and requesting that certain key words searches be used to identify potentially privileged information and where defendants took prompt steps to retrieve the privileged documents upon discovering their disclosure; district court affirmed the order, noting that the review was ?obviously complicated? by the fact that ?many or most of the documents were in Japanese and had to be obtained from Japan?

Nature of Case: Putative class action alleging unfair business practices and related claims in connection with design of toner cartridges

Electronic Data Involved: Inadvertently produced ESI

Board of Trs. Sheet Metal Workers Nat?l Pension Fund v. Palladium Equity Partners, LLC, 722 F. Supp. 2d 845 (E.D. Mich. 2010)

Dec 01 2010

Key Insight: Considering the large volume of materials produced, defendants? efforts to review materials prior to their production (including using 16 review associates supervised by two senior associates), and the complicated nature of certain privilege issues (including the number of law firms implicated in the relevant correspondence), court found no waiver of privilege resulting from the inadvertent production of 184 documents and denied plaintiffs? motion for an order invalidating defendant?s claims of privilege

Nature of Case: Claims arising under the Employment Retirement Income Security Act of 1974 (ERISA)

Electronic Data Involved: Privileged ESI

Tag:Privilege or Work Product Protections