Privilege or Work Product Protections – Page 30

Richmond v. Coastal Bend Coll. Dist., 2009 WL 1940034 (S.D. Tex. July 2, 2009)

Dec 01 2009

Key Insight: Court granted defendants? motion for protective order preventing the production of emails in sealed court file where plaintiffs failed to establish an exception to the Public Information Act requiring their disclosure, where plaintiffs failed to establish defendants? waiver of privilege, and where plaintiffs failed to establish the applicability of the crime fraud exception; court granted plaintiffs? motion to compel certain information, including personal emails, and ordered defendants to submit affidavits indicating their lack of personal accounts, if appropriate, and for defendants to produce emails ?of a personal nature to the court under seal? for a determination of relevance

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Great Am. Ins. Co. v. Liberty Surplus Ins. Co., 2009 WL 3052680 (N.D. Cal. Sept. 18, 2009)

Dec 01 2009

Key Insight: Where a claims specialist for defendant forwarded counsel?s coverage opinion to third party, copied a claims manager for her company in the communication, discussed the opinion with the third party, and made no claim of privilege until the document was utilized in plaintiff?s motion for summary judgment, court found that the production was not inadvertent and found that the voluntary communication of the coverage opinion waived defendant?s claim of attorney-client privilege and work product; court?s opinion specifically rejected defendant?s reliance on Fed. R. Civ. P. 26(b)(5)(B)

Nature of Case: Insurance litigation regarding coverage obligations

Electronic Data Involved: Email forwarding counsel’s coverage opinion

Silverstein v. Fed. Bureau of Prisons, 2009 WL 4949959 (D. Colo. Dec. 14, 2009)

Dec 01 2009

Key Insight: Defendants waived claims of privilege as to specific memorandum where, despite initially identifying the memorandum as privileged and placing it on the privilege log, defendants subsequently produced the memorandum and, upon realizing their mistake, failed to properly and timely re-assert the privilege or to take reasonable steps ?rectify the erroneous disclosure?; waiver was intentional where defendant failed for nearly 11 months to clarify the status of the document following its production despite a ready ability to do so and, where plaintiff was prejudiced as a result, court found ?fairness dictat[ed]? that plaintiff be allowed to proceed with discovery and that ?to the extent questions and documents ?concern the same subject matter? as that disclosed in the [memorandum], ?they ought in fairness to be considered together.??

Nature of Case: Constitutional claims

Electronic Data Involved: Privilege memorandum

Lawson v. Sun Microsystems, Inc., 2009 WL 499014 (S.D. Ind. Feb. 26, 2009)

Dec 01 2009

Key Insight: Where plaintiff denied wrongdoing resulting from its efforts to access password-protected files containing attorney-client material produced to plaintiff in discovery and relied in part on counsel?s approval of those actions, court ordered emails between plaintiff and counsel produced based on plaintiff?s reliance on those discussions and the ?need to unearth what actually transpired?; court indicated belief that intrusion into the attorney-client privilege was minimized by court?s en camera review of the emails before rendering its decision

Nature of Case: Action for unpaid commission

Callan v. Christian Audigier, Inc., 263 F.R.D. 564(C.D. Cal. 2009)

Dec 01 2009

Key Insight: Where defendants sought to compel plaintiff?s compliance with a clawback provision intended to control the return of inadvertently produced documents but failed to establish the nature of the privilege claimed or the precautions taken to prevent disclosure, court ruled that defendants had failed to establish that the production of any document was ?inadvertent? and denied defendants? motion to compel

Electronic Data Involved: ESI

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

Tag:Privilege or Work Product Protections