Privilege or Work Product Protections – Page 26

Rohm and Hass, Co. v. Dow Chem., Co., 2009 WL 537195 (Del. Ch. Feb. 26, 2009) (Unpublished)

Dec 01 2009

Key Insight: Chancellor denied motion to compel production of Litigation Support Model program designed to assist defendant in settlement analysis where program was prepared in anticipation of litigation and where plaintiff failed to establish necessary showing of substantial need or the inability to obtain the substantial equivalent elsewhere; recognizing sensitive nature of Enterprise Model program used for corporate decision making and strategy, court denied defendants motion for a protective order but ordered plaintiffs to limit disclosure of that material to essential persons and ordered experts to certify their understanding of the limitations of the information?s use and their obligation of confidentiality prior to viewing the information

Nature of Case: Breach of contract

Electronic Data Involved: Dynamic program models

Ford Motor Co. v. U.S., 2009 WL 2176657 (E.D. Mich. July 21, 2009)

Dec 01 2009

Key Insight: Court granted in part and denied in part plaintiff?s motion to compel the government to produce documents in nine categories, including compelling the government to provide declarations outlining its search methodology and efforts and finding that the government need not attempt to recover emails that had been overwritten because of undue burden and costs, among other things; court rejected government argument that it had not produced a privilege loge because ?producing such a log would defeat [its] unduly burdensome objections? and ordered an ?adequately detailed privilege log for the responsive documents that it withholds from production?

Nature of Case: Action to recover interest accrued on overpayments of corporate income tax

Electronic Data Involved: ESI

In re McKesson Governmental Entities Average Wholesale Price Litig., 2009 WL 3706898 (N.D. Cal. Nov. 4, 2009)

Dec 01 2009

Key Insight: Where government agency objected to defendants? subpoena for the production of documents previously produced in a separate litigation on grounds of undue burden and cost based on the assertion that it needed to re-review all documents prior to production because some documents were subject to the deliberative process privilege and others were highly confidential, court held that the privilege had been waived by the agency?s failure to object in its initial response and by the production in separate litigation, ordered the documents produced under the POD ?Confidential, For Outside Attorney Eyes Only? and ordered defendants to bear the costs ?of copying and producing the documents in electronic form?

Nature of Case: Allegations that defendants artificially increased the published price of prescription drugs

Electronic Data Involved: ESI previously produced in separate litigation and maintained in database by third party

United States v. Hatfield, 2009 WL 3806300 (E.D.N.Y. Nov. 13, 2009)

Dec 01 2009

Key Insight: Addressing a number of attorney-client privilege and work product issues, the court considered whether documents stored on defendant?s company?s computer remained privileged and, noting the case-by-case nature of the assessment, considered five factors, including whether the company maintained a policy banning personal use, whether the company monitored employees? computer use or email, and how the company interpreted its own policy, and determined that defendant had not waived privilege as to documents stored on his own hard drive or that of a person with whom he maintained a joint defense agreement

Nature of Case: Criminal charges arising from alleged fraudulent schemes by CEO to defraud shareholders

Electronic Data Involved: Privileged emails stored on company computer

Continental Group, Inc. v. KW Prop. Mgmt., 2009 WL 425945 (S.D. Fla. Feb. 20, 2009)

Dec 01 2009

Key Insight: Where parties failed to establish filtering protocol to segregate privileged materials from portable devices because of a disagreement as to the meaning of the court?s prior order, court ordered production of images of defendant?s portable devices to plaintiff prior to performing a privilege review but held that such production would not result in waiver and indicated its belief that no prejudice to defendant?s would result, despite acknowledgement that plaintiff would have ?a few days to view the images which may contain privileged material? prior to defendants identification of privileged material

Electronic Data Involved: Privileged ESI on portable devices

Boyce & Isley, PLLC v. Cooper, 673 S.E.2d 694 (N.C. App. 2009)

Dec 01 2009

Key Insight: Where protective order allowed for inspection and identification of documents to be copied and where defendant?s attorney was allowed to inspect documents for such identification and also took notes, including typing portions of those documents into her laptop, appellate court found notes were protected as opinion work product because they would reveal which documents, among thousands, were considered significant to defendants and reversed order of trial court compelling their production

Nature of Case: Defamation

Electronic Data Involved: Attorney’s notes on laptop

Sentis v. Shell Oil Co., 559 F.3d 888 (8th Cir. 2009)

Dec 01 2009

Key Insight: Where, when imposing discovery sanctions, trial court improperly relied on unreliable evidence of misconduct by plaintiff, including accusations of bribery proffered by defendant following receipt of an anonymous phone tip, where the other findings in support of the sanction were ?close questions,? and where there were accusations of judicial bias and the appearance of judicial partiality, circuit court of appeals reversed the judgment of the district court dismissing plaintiff?s claims and remanded the matter for further proceeding before a different judge

Nature of Case: Breach of contract

Electronic Data Involved: ESI, email

Amobi v. D.C. Dep?t of Corrs., 262 F.R.D. 45 (D.D.C. 2009)

Dec 01 2009

Key Insight: In this opinion authored by Magistrate Judge Facciola, the court conducted an analysis of waiver pursuant to FRE 502 and found that the attorney work-product privilege was waived by the inadvertent production of an attorney-prepared memorandum where defendants claimed ?several reviews of the documents?were undertaken? but offered no indication of the methodology used to review documents for privilege ?let alone any explanation of why these efforts were?reasonable in the context of the demands made upon the defendants? and thus failed to meet their burden of proving that the privilege was not waived

Nature of Case: Claims arising from DOC officer’s removal from duty following an altercation with an inmate

Electronic Data Involved: Attorney-prepared memorandum

Whitaker Chalk Swindle & Sawyer, LLP v. Dart Oil & Gas Co., 2009 WL 464989 (N.D. Tex. Feb. 23, 2009)

Dec 01 2009

Key Insight: Where defendant sought protection against disclosure of documents related to the billing dispute with its former attorneys because such production could waive privileges in another, pending case, court ordered production pursuant to prescribed provisions, including a provision that no waiver would result by the compelled disclosures pursuant to Fed. R. Evid. 502

Nature of Case: Billing dispute between counsel and former client

Electronic Data Involved: Information related to billing dispute

In re Motor Fuel Temperature Sales Practices Litig., 2009 WL 959491 (D. Kan. Apr. 3, 2009)

Dec 01 2009

Key Insight: Court denied defendants? motion for an order relieving them of their obligation to ?review and log documents created after the commencement of litigation relating to communications with attorneys about this lawsuit,? despite defendants arguments of extreme burden, where defendants offered no case law in support of their position , where not all documents created post litigation and involving an attorney would be protected from production as privileged, and where defendants made no effort to address the lesser burden of reviewing only potentially relevant email; sympathetic to defendants? arguments that logging each message would be burdensome, court permitted defendants to categorically describe privileged communications in log

Electronic Data Involved: Email communications created after commencement of litigation

Tag:Privilege or Work Product Protections