Privilege or Work Product Protections – Page 24

Helm v. Alderwoods Group, Inc., 2010 WL 2951871 (N.D. Cal. July 27, 2010)

Dec 01 2010

Key Insight: Court ordered defendant to identify the authors and recipients of all documents listed on its privilege log and warned that failure or inability to do so would result in waiver; where defendant failed to separately log all messages within email chains, the court recognized a split in authorities regarding the need to itemize each message separately and concluded that in this case, the ?better approach? would be to require defendant to supplement its log with each message itemized

Electronic Data Involved: ESI, privileged email

Alpert v. Riley, 2010 WL 1556566 (S.D. Tex. Apr. 19, 2010)

Dec 01 2010

Key Insight: Where defendant previously stored privileged materials on the computer of a third-party business partner and where the relationship later soured, defendant inadvertently waived claim of privilege as to privileged ESI by failing to take prompt steps to protect the privileged materials following clear notice that the protections he had placed (passwords, etc.) were no longer in place and by persisting in that failure to protect the material for a number of years thereafter

Nature of Case: Alleged improper excercise of authority by trustee

Electronic Data Involved: Electronic documents

Lunts v. Rochester City School Dist., 2010 WL 2786519 (W.D.N.Y. Sept. 28, 2010)

Dec 01 2010

Key Insight: Where defendants denied plaintiffs? spoliation allegations and opposed their motion for sanctions by asserting that all responsive emails had been produced, court ordered defendants to comply with a prior order requiring defense counsel to submit a declaration indicating whether any relevant ESI had been withheld and why and to provide a privilege log for any such documents and to provide a privilege log for three emails previously submitted for in camera review; failure to submit the declaration or the privilege log by a date certain would result in a $500 sanction for each violation

Nature of Case: Employment litigation

Electronic Data Involved: Emails

Jeanes-Kemp, LLC v. Johnson Controls, Inc., 2010 WL 3522028 (S.D. Miss. Sept. 1, 2010)

Dec 01 2010

Key Insight: Court granted plaintiff?s motion for protective order as to two inadvertently produced privileged documents where the production was inadvertent, where discovery was reviewed by three attorneys prior to production and thus efforts to prevent disclosure were reasonable, and where upon notice of disclosure, counsel took immediate steps to retrieve the documents; court declined to sanction defense counsel for threatening use of the inadvertently disclosed documents where plaintiff?s motion for protective order was granted and where defendants had not yet had the opportunity to use the documents as threatened

Electronic Data Involved: Inadvertently produced emails

Kmart Corp. v. Footstar, Inc., 2010 WL 4512337 (N.D. Ill. Nov. 2, 2010)

Dec 01 2010

Key Insight: Court found the producing party did not take reasonable steps to prevent disclosure and that privilege was therefore waived as to inadvertently produced privileged documents where the number of documents requiring review prior to production was low in light of the public nature of most documents produced at the same time as the inadvertently produced documents, where the alleged time constraints for the relevant review were ?self-imposed? by the producing party, and where despite representations that the materials were reviewed by an attorney who was looking for privileged materials, insufficient facts were offered in support of that contention

Nature of Case: Plaintiff sought indemnification for underlying personal injury suit

Electronic Data Involved: ESI

Olem Shoe Corp. v. Wash. Shoe Co., 2010 WL 3981694 (S.D. Fla. Oct. 8, 2010)

Dec 01 2010

Key Insight: Court found no waiver of privilege resulting from commercial copy service?s inadvertent disclosure of privileged materials to plaintiff?s counsel where the disclosure was clearly inadvertent, where reasonable steps were taken to protect the privilege including clear instructions to the copy service and clearly marking the documents as privileged, and where defense counsel acted promptly to rectify the error after learning of the disclosure; court rejected arguments that defense counsel waived privilege by a delay in seeking the documents? return where such delay was directly related to plaintiff?s decision to notify only defense counsel?s paralegal of the disclosure, who inexcusably failed to pass that information on to counsel, and where defense counsel requested the documents? return on the same day he actually learned of the disclosure

Electronic Data Involved: Privileged ESI

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

Tag:Privilege or Work Product Protections