Key Insight: Disclosure of summary of internal investigation did not waive privilege of underlying documents. Waiver not inferred simply because of disclosure of materials on same topic.
Nature of Case: employment dispute
Electronic Data Involved: internal investigation files
Keywords: waiver, privilege
Key Insight: Proportionality need for records not related to the claim; Relevance; Access to records; Parties resources; Whether the burden or expense of the proposed discovery outweighs it’s likely benefit
Nature of Case: Prisoner Pro Se – Unconstitutional use of excessive force by corrections officers
Electronic Data Involved: Hard copy (discipline records/ Mail logs); collection
Keywords: Compel; Sanctions; Declaration of counsel; Malicious and sadistic purpose to inflict harm; State of Mind; Veracity; narrowed requests; meet and confer;
Key Insight: The work product doctrine applies when litigation is reasonably foreseeable. Generally, litigation is anticipated when an insurance claim is denied. Here, the lawsuit was filed before the claim was formally denied, but after Defendant began investigating the legitimacy of the claim and evaluating potential defenses and exemptions. Defendant argues litigation was anticipated immediately upon receipt of Plaintiff’s insurance claim. Plaintiff contends that litigation was not anticipated until the lawsuit was filed. The Court disagreed with both positions. After the insurance claim was filed, the primary purpose of the documents created was to gather information to evaluate the claim not in anticipation of litigation. The Court found that litigation was reasonably anticipated when Plaintiff informed Defendant he had retained counsel. Defendant responded to the notification as if litigation were imminent. All documents created from that point forward were created in anticipation of litigation. As such, those documents are protected work product.
Nature of Case: Insurance Claim, Theft of business property
Electronic Data Involved: Business Records, Insurance Claim File
Key Insight: when work product doctrine comes into play
Nature of Case: theft of business property insurance claim
Electronic Data Involved: insurance file claim work product claim
Keywords: work product doctrine, anticipation of litigation
Key Insight: “No-eyes-on” document production;
Nature of Case: Products Liability MDL
Electronic Data Involved: Hard copy and ESI productions;
Keywords: MDL; Discovery orders; Production
Key Insight: The communications with Plaintiff’s consultant were not privileged because the consultant was not a “functional employee.” There is no evidence that the consultant had “information about the company that would assist the company’s attorneys in rendering legal advice.” Additionally, there was no evidence that consultant’s communications with counsel were primarily of a legal nature rather than a business one.
Defendant’s request for sanctions was premature. Rule 37 sanctions are only allowed against a party for disobeys a court issued discovery order. Additionally, no evidence was presented in support of Defendant’s spoliation theory other than a failure to produce documents to its subpoena. Without evidence regarding what was destroyed, when it occurred, the extent of Plaintiff’s involvement, and resulting prejudice, sanctions are inappropriate.
Nature of Case: Trademark Infringement, Breach of Contract
Electronic Data Involved: Email
Key Insight: Failure to produce; Sanctions; Proportionality
Nature of Case: Trademark & Copyright infringement
Electronic Data Involved: Hard copy; correspondence; email
Keywords: “Functional employee”; Consultant; Third-party communications; Privilege; Spoliation; Unfair prejudice; Attorney’s fees and costs; Proportionality; Access/Resources;
Key Insight: Privileged docs based on only state law must be produced in a case with both federal and state claims
Nature of Case: Medical malpractice
Electronic Data Involved: Responsive documents
Keywords: Privilege, state law
Identified State Rule(s): K.S.A. section 65-4925(a)
Identified Federal Rule(s): FRCP 26(b)
Key Insight: whether the government can create a filter team to go through documents that may be privileged
Nature of Case: money laundering and obstruction of a federal investigation
Electronic Data Involved: documents seized from a law firm that is subject to attorney client privilege
Keywords: filter team, attorney client privilege, work product, search warrant.
Key Insight: attorney on email to multiple parties seeking input on plan implementation not privileged
Nature of Case: wrongful termination
Electronic Data Involved: emails
Keywords: attorney client privilege
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