Privilege or Work Product Protections – Page 29

Knights Armament Co. v. Optical Sys. Tech., Inc., 2009 WL 331608 (M.D. Fla. Feb. 10, 2009)

Dec 01 2009

Key Insight: Finding that defendant?s delay in producing a privilege log and the insufficiency of the entries therein supported a finding of waiver, court nonetheless declined to impose the ?extreme sanction? of waiver as to the actual privileged communications but held that defendants had failed to establish that the attached ?preexisting business records? were privileged or protected and ordered the them produced

Nature of Case: Trademark infringement, false advertising, unfair competition, and other claims

Electronic Data Involved: Emails

Synergetics USA, Inc. v. Alcon Labs., Inc., 2009 WL 2016795 (S.D.N.Y. July 9, 2009)

Dec 01 2009

Key Insight: Court granted defendants? motion for the return of privileged documents where the documents were inadvertently produced following a ?multi-layered? review, where defendants promptly requested the return of the documents within three days of learning of their disclosure, and where ?fairness would not be offended by restoring immunity to [the] documents;? some documents subject to defendants? motion were determined not to be privileged and thus were not subject to return

Nature of Case: Violation of antitrust laws by tying sales of light tubes to sales of Accurus cassettes, predatory pricing

Electronic Data Involved: Emails

Commonwealth v. Ruddock, 2009 WL 3400927 (Mass. Sup. Ct. Oct. 2009)

Dec 01 2009

Key Insight: Recognizing that the defendant would be ?severely handicapped? absent expert consultation and finding that requiring defendant?s expert to examine the evidence while in the commonwealth?s custody would burden defendant?s rights to effective assistance of counsel and create the risk that his work product would be accessible to the government, court ordered mirror image of defendant?s hard drive to be produced, but entered a strict protective order limiting its use and dissemination

Nature of Case: Possession of child pornography

Electronic Data Involved: Hard drive

Smith v. Life Investors Ins. Co., 2009 WL 2045197 (W.D. Pa. July 9, 2009)

Dec 01 2009

Key Insight: Where defendant performed electronic search ?without plaintiff?s input? and then refused to produce its search terms claiming attorney work product, court cited Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 262 (D.Md.2008), for the proposition that ?the party performing the search had a duty to demonstrate that its methodology was reasonable? and, noting that ?a thorough explanation of the search terms and procedures used would be a large step in that direction,? granted plaintiff?s motion to compel; court granted Plaintiff?s Motion to Resolve a Disputed Claim of Privilege Pursuant to Fed. R. Civ. P. 26(b)(5)(B) finding the documents at issue were not subject to protection and need not be returned to defendant

Nature of Case: Class action involving “interpretation fo the term ‘actual damages’ in a supplemental cancer insurance policy”

Electronic Data Involved: Search terms

Rhoades v. Young Women?s Christian Assoc. of Greater Pittsburgh, 2009 WL 3319820 (W.D. Pa. Oct. 14, 2009)

Dec 01 2009

Key Insight: Where defendant inadvertently produced 4 privileged documents (among over 1600 total) as the result of an administrative error following a careful review of the documents for production and where defendants sought the return of those document only five days later, court found privilege had not been waived; court found request for ?versions of all emails sent by or to Plaintiff? and several other persons unduly burdensome where the request covered more than seven years of email and did not specify the topics of the information sought

Nature of Case: Violations of Equal Pay Act and Fair Labor Standards Act

Electronic Data Involved: ESI, Privileged ESI

In re Intel Microprocessor Antitrust Litig., 2009 WL 2030967 (D. Del. July 7, 2009)

Dec 01 2009

Key Insight: Court adopted Special Master?s Report and Recommendation requiring plaintiffs to respond to questions regarding the scope of their efforts with regard to the restoration of backup tapes upon finding that such information was not protected by the attorney-client privilege

Nature of Case: Antitrust litigation

Electronic Data Involved: Backup tapes, ESI

Flagstar Bank, FSB v. Freestar Bank, N.A., 2009 WL 3756898 (D.N.H. Nov. 9, 2009)

Dec 01 2009

Key Insight: Finding that emails transmitted for purpose of responding to discovery were not privileged, court affirmed magistrate?s order denying motion to quash subpoena seeking production of such emails; addressing defendant?s argument that separate email entries on privilege log should have been considered as a string, court relied on Muro v. Target Corp. noting that while ?Muro says that a court cannot force a party to individually list emails that appear in a privilege log as a string; it does not say that a court must string together emails that are listed separately.?

Nature of Case: trademark infringement

Electronic Data Involved: Emails

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

Tag:Privilege or Work Product Protections