Privilege or Work Product Protections – Page 28

In re Rail Freight Surcharge Antitrust Litig., 2009 WL 3443563 (D.D.C. Oct. 23, 2009)

Dec 01 2009

Key Insight: Where defendants argued against treating in house counsel as ?normal custodians? for purposes of collection and production because the burden of reviewing potentially responsive information for privilege was high and the likely benefit of any material produced minimal, but where the parties had already agreed on a ?filter? which would automatically ?log? any ESI hit by certain privileged terms, court ordered ESI production to go forward but delayed review and production of hard copy until the extent of the burden could be determined and indicated hope that ?we will be able to devise a method of reviewing the hard copies for privilege without the necessity of a log? noting that ?I have all too often found the traditional privilege log useless.?

Nature of Case: Antitrust litigation

Electronic Data Involved: ESI

United States v. Cinergy, Corp., 2009 WL 6327414 (S.D. Ind. Nov. 10, 2009)

Dec 01 2009

Key Insight: Inadvertent production of privileged material by third party pursuant to subpoena waived defendants? privilege protection where third party?s disclosure was found to be tantamount to defendant?s disclosure because of the nature of their relationship and where defense counsel failed to take any steps to prevent the production of privileged materials despite being asked specifically if privilege issues were implicated in the production (to which he answered ?no?) and despite the low volume of materials produced; court noted that although there was no legal obligation for defendants to conduct a post-production review, ?had [they] done so, they might well have noticed the email at issue before Plaintiffs did, and the result in this case might have been different.?

Electronic Data Involved: Privileged email

Am. Coal Sales Co. v. Nova Scotia Power, Inc., 2009 WL 467576 (S. D. Ohio Feb. 23, 2009)

Dec 01 2009

Key Insight: Finding that Plaintiff ?took reasonable precautions to avoid inadvertent disclosures by having two attorneys review documents prior to production; that inadvertent production of one document out of over 2,000 documents produced does not weigh in favor of waiver; that the extent of the waiver was not great because the document had not worked its way into the fabric of the litigation; that Plaintiff took prompt measures to rectify the disclosure; and that the overriding interests of justice and fairness did not conclusively counsel in favor of waiver,? court granted plaintiff?s motion for a protective order preventing use of inadvertently disclosed email; court found ER 502 applicable, despite application of alternative five-factor test by magistrate, and determined that court?s application of ER 502 did not prevent review of magistrate?s ruling where ER 502 and five-factor test were sufficiently consistent (see FN 1)

Nature of Case: Breach of contract, unjust enrichment, fraud

Electronic Data Involved: Email

V. Mane Fils, S.A. v. Int?l Flavors & Fragrances, Inc., 2009 WL 1968925 (July 1, 2009)

Dec 01 2009

Key Insight: Court denied motion to compel production of post-suit privileged and work product documents, despite defendant?s assertion of the affirmative defense of reliance on advice of counsel and its prior production of pre-suit privileged and work product documents, where the analysis of the willfulness of the infringement focused on pre-litigation activities and where, per a prior court order, defendant had not been segregating or logging such documents and so production would be a significant burden

Nature of Case: Patent infringement

Electronic Data Involved: Privileged ESI

In re Boxer Mgmt. Co., 2009 WL 4250123 (Tex. Ct. App. Sept. 3, 2009)

Dec 01 2009

Key Insight: Court of appeals conditionally granted petition for writ of mandamus and directed the trial court to vacate its order compelling the deposition of defendant?s corporate representative regarding the adequacy of defendant?s response to discovery (using specific question approved by the trial court) where such inquiry would concern the mental impressions of general counsel responsible for discovery (and the likely deponent) which are subject to work product protection; court also determined that absent evidence of discovery abuse, the deposition would constitute an impermissible fishing expedition

Nature of Case: Premesis liability

Electronic Data Involved: ESI

Schanfield v. Sojitz Corp. of Am., 2009 WL 577659 (S.D.N.Y. Mar. 6, 2009)

Dec 01 2009

Key Insight: Emails sent to co-workers to recruit them as co-plaintiffs not protected by the work product doctrine where plaintiff merely assumed co-workers would keep his communications secret but where court found that sending emails to employees of a corporation increased the likelihood that the material would reach others within the corporation and thus ruled that plaintiff forfeited the protection by using the work product ?in such a way that they may end up in the hands of [his]adversary;? where plaintiff sent emails to attorney family members and copied his non-lawyer sister or another relative, court ruled emails were protected by work product doctrine because material was prepared in anticipation of litigation and sharing with relatives ?did not significantly increase the likelihood that [defendant] would obtain private information?

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Doctor’s Assocs., Inc. v. QIP Holder LLC, 2009 WL 1683628 (D. Conn. Feb. 26, 2009)

Dec 01 2009

Key Insight: Special master recommended granting in part plaintiff?s motion to compel documents withheld as subject to attorney-client privilege or the work-product doctrine for several reasons, including that the privilege log was incomplete based on plaintiff?s failure to log each message in an email string as a separate and unique document pursuant to Rhoads Industries, Inc. v. Building Materials Corp. of America, et al., 2008 U.S. Dist. LEXIS 96404 (E.D.PA.2008); special master noted, ?it would be impossible for the party seeking discovery to challenge a communication or document that he does not know exists?; recommendation includes discussions of attorney-client privilege, the work-product doctrine, and the common interest privilege

Nature of Case: Violations of Lanham Act, Violation of Connecticut Unfair Trade Practices Act, and commercial disparagement

Electronic Data Involved: ESI

Laethem Equip. Co. v. Deere & Co., 2009 WL 4069279 (E.D. Mich. Nov. 23, 2009)

Dec 01 2009

Key Insight: Where upon the court?s order to produced any privileged documents not properly and timely logged plaintiff produced only certain documents and redacted others, and where plaintiff explained that the withheld and redacted documents were duplicates of documents previously determined to be privileged by the court, court denied defendant?s motion to compel and stated: ?Where a written communication is found to be protected by the attorney-client privilege, an identical copy of that document, when challenged, ought to yield the same result, despite a different indexing number for the copy. To treat identical copies of the same document differently based solely on the numerical designation in a data log elevates form over substance in the worst way.?

Nature of Case: Breach of contract, statutory violations, tortious interference

Electronic Data Involved: Privileged materials

Am. Family Mut. Ins. Co. v. Gustafson, 2009 WL 641297 (D. Colo. Mar. 10, 2009)

Dec 01 2009

Key Insight: Court ordered specific protocol for search of mirror images of defendant?s hard drive allowing defendant to first remove privileged and irrelevant material and create a detailed privilege log and then to produce the redacted drive to plaintiff; upon receipt of redacted drive, plaintiff was ordered to confer with defendant to establish search terms and to use those terms to identify potentially relevant information on the drive; where plaintiffs accessed information later claimed to be privileged, court would resolve dispute and privilege would not be waived

Nature of Case: Violation of Computer Fraud Abuse Act, Colorado Consumer Protection Act, misappropriation of trade secrets, breach of contract, interference with contractual obligations

Electronic Data Involved: ESI, hard drive

In Re Nat?l Century Fin. Enters., Inc. Fin. Inv. Litig., 2009 WL 2169174 (S.D. Ohio July 16, 2009)

Dec 01 2009

Key Insight: Court granted in part and denied in part a motion for sanctions based on multiple plaintiffs? alleged delay and spoliation, including a failure to preserve relevant evidence, and ordered sanctions including excluding certain plaintiffs from affirmatively using late produced documents and allowing the moving party to proffer evidence at trial that it believed would give rise to an adverse inference and entitle it to an adverse jury instruction

Nature of Case: Consolidated actions arising from the collapse of National Century Financial Enterprises, Inc.

Electronic Data Involved: ESI

Tag:Privilege or Work Product Protections