Privilege or Work Product Protections – Page 31

Preferred Care Partners Holding Corp. v. Humana, Inc., 2009 WL 982449 (S.D. Fla. Apr. 9, 2009)

Dec 01 2009

Key Insight: Court declined to find plaintiffs had waived privilege as to three emails where the emails were inadvertently produced (amongst a supplemental production of 10,000 documents), where plaintiffs? counsel took reasonable steps to prevent their production by conducting a pre-production privilege review and where two of the emails had been marked as privileged, and where plaintiff took reasonable steps to rectify the error by requesting the return of each email shortly after discovering its production; court found waiver as to one email where the details of the email where revealed at hearing and in a declaration and thus, the privilege was voluntarily waived

Nature of Case: Claims arising from breach of confidentiality agreement

Electronic Data Involved: Emails

Pulse Eng?g. Inc. v. Mascon, Inc., 2009 WL 3234177 (S.D. Cal. Oct. 2, 2009)

Dec 01 2009

Key Insight: Court denied motion to compel production of redacted portions of emails where the emails were prepared in anticipation of litigation and where dissemination to third party with common legal interest did not constitute waiver pursuant to the Common Interest Doctrine (commonality of interested existed where third party was responsible for manufacturing and supplying the allegedly infringing filter)

Nature of Case: Patent infringement

Electronic Data Involved: Portions of privileged emails

Kandel v. Brother Int?l Corp., 2009 WL 5454888 (C.D. Cal. Dec. 15, 2009)

Dec 01 2009

Key Insight: Where defendants presented evidence that 110 privileged documents were produced despite extensive preventative measures, including key word searching and manual review, and where defense counsel took immediate action to identify all privileged materials that had been produced and to request plaintiff return, sequester, or destroy the documents pursuant to the parties? clawback agreement, court found that ?defendants ha[d] shown their production?was inadvertent within the meaning of?the protective order? and denied plaintiff?s motion for an order declaring 28 documents produced by defendants to be not privileged

Nature of Case: Class action

Electronic Data Involved: Privileged communications

Ayers Oil Co. v. Am. Bus. Brokers, Inc., 2009 WL 4725297 (E.D. Mo. Dec. 2, 2009)

Dec 01 2009

Key Insight: Where a party to the litigation forwarded an email from his attorney to a third party, the court ruled that the attorney-client privilege had been waived because there was no shared legal interest between the litigant and the third party and thus the common interest doctrine did not apply but held that the protection provided by the work product doctrine had not been waived where the email was forwarded to ?a nonadversary third party? and where there was no basis for finding it likely that the third party would not keep the email confidential

Electronic Data Involved: Privileged email

Kallas v. Carnival Corp., 2008 WL 2222152 (S.D. Fla. May 27, 2008)

Dec 01 2008

Key Insight: Where plaintiff supported class certification motion with affidavits prepared by paralegals who conducted interviews with potential class members, court found that such affirmative use of work product opened door to defendant’s attempt to verify accuracy of investigation, to discover flaws, and to obtain if possible information that could impeach paralegals’ testimony; court ordered plaintiff to produce memo to file itemizing questions to be propounded to interviewees, completed form questionnaires with handwritten notations used in survey, and memoranda or handwritten notations generated by affiants during course of survey or thereafter to memorialize factual information obtained; database itself retained work product protection and plaintiff was not required to produce entire printout of database beyond those portions that plaintiffs intended to rely upon and had been produced

Nature of Case: Class action brought by passengers who had suffered symptoms associated with a spread of Norovirus

Electronic Data Involved: Epi Info database, questionnaires and underlying relevant data

Spieker v. Quest Cherokee, LLC, 2008 WL 4758064 (D. Kan. Oct. 30, 2008)

Dec 01 2008

Key Insight: Granting leave to refile, court denied plaintiff?s motion to compel production of emails for failure to show their relevance to class certification but rejected defendants? argument that $375,000 cost of production was unduly burdensome in light of amount in controversy where defendant argued claims of named plaintiffs were worth $100,000 or less but plaintiff argued claims of the class exceeded $5 million; court also stated that where defendant was in better position to identify search terms it should do so to reduce volume, that the cost of production versus the amount in controversy did not render email data ?not reasonably accessible,? and that parties should address Rule 502 in any future discussions regarding cost, among other things

Nature of Case: Class action for failure to pay royalties arising from oil and gas leases

Electronic Data Involved: Email

Ex Parte Vulcan Materials Co., 2008 WL 1838309 (Ala. Apr. 25, 2008)

Dec 01 2008

Key Insight: Adopting the same approach as that in Ex parte Cooper Tire & Rubber Co., 2007 WL 3121813 (Ala. Oct. 26, 2007), Alabama Supreme Court directed trial court to reconsider Vulcan?s motion for a protective order as to emails sought in light of FRCP 26(b)(2)(B) and Wiginton v. CB Richard Ellis, Inc., 229 F.R.D. 568 (N.D. Ill. 2004) and in light of Vulcan?s arguments that the requested emails likely constitute work product and would not likely lead to relevant information

Nature of Case: Company petitioned for writ of mandamus seeking review of trial court?s order on post-trial discovery related to motion for remittitur of punitive damages awarded in underlying action for breach of contract, tortious interference with contractual relations, and civil conspiracy

Electronic Data Involved: Email

Naik v. Boehringer-Ingelheim Pharm., Inc., 2008 WL 4866015 (N.D. Ill. Jun. 19, 2008)

Dec 01 2008

Key Insight: Court declined to find waiver of privilege where privileged portion of email was inadvertently produced amidst 2,300 pages and where defendant took immediate action to assert privilege, reasserted privilege at deposition, and produced a revised privilege log within five days; court also noted lack of prejudice to plaintiffs

Nature of Case: Wrongful termination

Electronic Data Involved: Privileged email

Miyano Mach. USA, Inc. v. Miyanohitec Mach., Inc., 2008 WL 2364610 (N.D. Ill. June 6, 2008)

Dec 01 2008

Key Insight: Court applied balancing test and found that plaintiff?s inadvertent production of single privileged email on CD among 22,000 pages of documents did not effect waiver given expedited nature of discovery, scope of documents produced, limited extent of disclosure and lack of any demonstrable prejudice to defendants

Nature of Case: Trademark infringement, cybersquatting, unfair competition, unfair trade practices

Electronic Data Involved: Privileged email

In re County of Erie, 546 F.3d 222 (2008)

Dec 01 2008

Key Insight: Petition for Mandamus granted and order to produce privileged emails vacated where appellate court found that defendants? claim of attorney-client privilege had not been waived because defendants had not claimed reliance upon privileged advice as a defense and thus had had not put the advice ?at issue?

Nature of Case: Class action challenging constitutionality of strip- search policy

Electronic Data Involved: Emails

Tag:Privilege or Work Product Protections