Privilege or Work Product Protections – Page 32

Cantrell v. Cameron, 195 P.2d 659 (Colo. 2008)

Dec 01 2008

Key Insight: Finding the court abused its discretion when it ordered production of a laptop for inspection but declined to incorporate restrictions or narrow scope of inspection and denied defendant?s motion for a protective order despite confidentiality concerns including attorney-client privilege and proprietary business information, appellate court vacated order and directed lower court to issue protective order limiting scope of inspection; court noted that while personal computers do implicate confidentiality issues requiring ?serious consideration of a person?s privacy interest,? ?a personal computer?s contents are not confidential by nature?

Nature of Case: Traffic accident resulting in personal injury

Electronic Data Involved: ESI, laptop

U.S. v. Simels, 2008 WL 5383138 (E.D.N.Y. Dec. 18, 2008)

Dec 01 2008

Key Insight: Where attorneys for lay criminal defendant were indicted for conspiracy and privileged materials were seized, parties established procedure for identification of privilege by allowing ?privilege team? of government lawyers segregated from prosecution team to review seized materials, concurrent with defense teams, and for the teams to reach agreement regarding each documents privilege status; where lay criminal defendant refused to waive attorney client privilege such that attorney defendants could use privileged materials at trial, court ruled disclosure to attorney defendants? counsel would not waive lay defendant?s privilege but declined to rule on the use of those materials at trial where such consideration was ?premature?

Nature of Case: Narcotic trafficking, conspiracy

Electronic Data Involved: Privileged ESI

St. Cyr v. Flying J, Inc., 2008 WL 2097611 (M.D. Fla. May 16, 2008)

Dec 01 2008

Key Insight: Court concluded that FRCP 26(5)(B) applied not only to ESI but to paper documents as well, and set out lengthy quote from advisory committee’s note; court denied plaintiff’s motion in limine to exclude evidence of plaintiff’s communications with expert, finding that plaintiff had waived work product protection by voluntarily producing the documents at expert’s deposition

Nature of Case: Negligence and strict liability

Electronic Data Involved: Letter and email produced in hard copy form

Air-Ride, Inc. v. DHL Express (USA), Inc., 2008 WL 4766832 (Ohio Ct. App. Nov. 3, 2008)

Dec 01 2008

Key Insight: Appellate court upheld waiver of privilege despite inadvertent production where defendant previously testified as to the subject of the email in affidavit, where the email was marked ?confidential,? indicating it had been reviewed by an attorney prior to production, where defendant learned of the disclosure from plaintiff and waited 2 weeks to seek judicial intervention, where the entirety of the email was produced rather than a part, and where its contents were ?at the heart of the matter? such that fairness mandated a finding of waiver

Nature of Case: Breach of contract

Electronic Data Involved: 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