Tag:Privilege or Work Product Protections

Key Insight: Court ruled against waiver as to privileged documents sent from and stored on deceased employee?s work computer where the employee had a reasonable expectation of privacy under the ?unusual circumstances? presented, including that the employee believed he was permitted to communicate with his attorney via his computer because the attorney was paid for by the company for the purpose of negotiating employee?s employment agreement and because of the failure of the employer?s use policy to expressly negate the expectation of privacy by failing to specifically reference waiver of attorney-client privilege, among other reasons; court also ruled that dissemination of a draft memo to the employee?s secretary did not waive privilege where the secretary was assigned to the employee, frequently edited and printed documents for the employee, and understood that such documents were to be kept confidential

Nature of Case: As executor, widow sued husband’s employer for breach of compensation agreement

Electronic Data Involved: Privileged emails, ESI

Key Insight: Where, following an order to produce an amended privilege and a warning that ?it would not be given another opportunity to establish privilege,? defendant?s amended privilege log still contained mistakes and where, in its attempt to correct those mistakes and clarify its claims of privilege, defendant then produced a sworn affidavit which once again failed to properly identify privileged emails vs. non-privileged attachments, court found defendant failed to establish privilege as to the documents in the affidavit and ordered them produced

Nature of Case: Contracts product liabilty

Electronic Data Involved: Privilege emails, email attachments

Key Insight: Addressing several questions regarding attorney-client privilege and work product, court stated that ?attachments or other email communications that are not otherwise independently privileged? but are contained within or attached to a privileged email were protected by the privilege where ?the disclosure of those emails would necessarily reveal the substance of a confidential client communication made seeking legal advice? and declined to compel their disclosure or the disclosure of the emails to which they were attached

Electronic Data Involved: Privileged emails