Privilege or Work Product Protections – Page 34

Ex parte Nationwide Mut. Ins. Co., 990 So.2d 355 (2008)

Dec 01 2008

Key Insight: Court denied (in part) motion for writ of mandamus to vacate trial court?s order compelling production of ?all documents regarding the relationship between Nationwide and its counsel? where Nationwide failed to show that the information was ?patently irrelevant,? as required, and where the court opined that the information was accessible through its counsel and was thus unpersuaded that production would be arduous; court granted motion (in part) and directed trial court to vacate order compelling production of all electronic communications with counsel where court found that communications occurring after denial of coverage were within period in which litigation was anticipated and were therefore privileged

Nature of Case: Breach of insurance contract

Electronic Data Involved: Email, ESI regarding relationship with counsel

DL v. Dist. of Columbia, 251 F.R.D. 38 (D.D.C. 2008)

Dec 01 2008

Key Insight: Where District’s discovery responses were insufficient, objections unfounded, and “rolling” production of documents spanned two years with ten supplemental responses, and where plaintiffs presented evidence that District had failed to give witnesses timely instructions for preserving and producing relevant email, court ordered District to review each of plaintiffs’ document requests, perform a complete and thorough search for responsive documents (including emails and faxes), and provide responsive documents to plaintiffs; court further awarded plaintiffs their reasonable attorneys’ fees and expenses in bringing motion, and ruled that District would be required, upon completion of discovery, to certify to court that it has responded fully to all document requests and that no other responsive documents exist as of time of certification

Nature of Case: Plaintiffs alleged that District violated Individuals with Disabilities and Education Act

Electronic Data Involved: Email

Ford Motor Co. v. Hall-Edwards, 997 So.2d 1148 (Fla. Dist. Ct. App. 2008)

Dec 01 2008

Key Insight: Where trial court granted plaintiff access to all defendant?s databases, including an exclusively privileged database, based upon an unproven assumption regarding ease of production and upon defendant?s violation of a prior court order by failing to provide sufficient information regarding its search efforts, appellate court quashed order noting that defendant?s violations were correctable and non-prejudicial and thus could not justify invasion of the attorney-client privilege or work product

Nature of Case: Personal injury

Electronic Data Involved: Database

Relion v. Hydra Fuel Cell Corp., 2008 WL 5122828 (D. Or. Dec. 4, 2008)

Dec 01 2008

Key Insight: Finding that plaintiff ?did not pursue all reasonable means of preserving privilege? court found that attorney client privilege was waived when plaintiff unintentionally produced two privileged emails in hard copy despite conducting a privilege review and because plaintiffs failed to discover the production until revealed by defendants despite having both paper and electronic, text-searchable copies of the documents produced

Electronic Data Involved: Email

Koch Foods of Ala. LLC v. Gen. Elec. Capital Corp., 531 F.Supp.2d 1318 (M.D. Ala. 2008)

Dec 01 2008

Key Insight: Concluding that, if the Alabama Supreme Court were to confront the issue of inadvertent waiver, it would likely adopt more comprehensive and sensitive totality-of-the-circumstances analysis, district court upheld magistrate judge?s ruling that plaintiff?s inadvertent production of privileged email among 3,758 pages of documents did not effect waiver

Nature of Case: Dispute over ownership of certain poultry processing equipment

Electronic Data Involved: Privileged email

Sprenger v. Rector of Va. Tech, 2008 WL 2465236 (W.D. Va. June 17, 2008)

Dec 01 2008

Key Insight: Where factual record was sparse and consisted solely of employer’s internet and email use policy, and no information was provided regarding knowledge, implementation, or enforcement of policy, court observed it had facts to determine only one of the four factors set out in In Re Asia Global Crossing, Ltd ., 322 B.R. 247 (Bankr. S.D.N.Y. 2005) and found that defendant had failed to meet its burden of demonstrating waiver of marital privilege; court quashed subpoena to plaintiff?s husband?s employer

Nature of Case: Employee alleged civil rights violations and violations of ADA and FMLA

Electronic Data Involved: ?[A]ll electronically stored information on all computers, laptops, PDA’s, portable media or other devices? utilized by plaintiff’s husband at his place of work relating to plaintiff’s claims

In Re U-Haul Class Action Tammy Koceinda, 2008 WL 5071996 (D. Conn. Nov. 21, 2008)

Dec 01 2008

Key Insight: Court declined to compel production of emails sent between plaintiff, her attorney, and her husband, where husband was an attorney, although not the attorney of record, and where he acted as plaintiff?s ?personal attorney? and provided legal advice regarding ongoing litigation

Nature of Case: Class action breach of contract

Electronic Data Involved: Email

Am. Mfr. Mut. Ins. Co. v. Payton Lane Nursing Home, 2008 WL 5231831 (E.D.N.Y. Dec. 11, 2008)

Dec 01 2008

Key Insight: Where plaintiffs? privilege log specified doc type, doc date, bates numbers, author, recipients and a document title but did not sufficiently describe the content of the document, court ordered production of proper log that must ?identify each document with specificity as is need to demonstrate the communication was made for the purpose of obtaining or providing legal services and that the communication was intended to be and was kept confidential.?

Electronic Data Involved: Privileged email and hard copy communications

Apsley v. Boeing Co., 2008 WL 191418 (D. Kan. Jan. 22, 2008)

Dec 01 2008

Key Insight: Where structure of Boeing?s privilege log was result of the same emails (containing legal advice) being stored in more than one email file and/or legal advice being repeated in email strings, and Boeing listed all of the email messages by Bates number where legal communication was located, but redacted only the portion of the string that contained legal communications, court concluded that log adequately supported Boeing?s claim of privilege for multiple copies of the same communication, noting: ?The organization of a privilege log for electronic documents existing in multiple locations presents a challenge. Perhaps a better method would be to list the original legal communication by date, author and recipient and thereafter indicate that the other Bates-stamped documents are copies or a repeat of the original legal communication. However, electronic discovery is an evolving practice and Boeing will not be faulted for its efforts to organize the privilege log.?

Nature of Case: Employment discrimination

Electronic Data Involved: Email

L.H. v. Schwarzenegger, 2008 WL 2073958 (E.D. Cal. May 14, 2008)

Dec 01 2008

Key Insight: Where defendants converted ESI from their original format, which had been searchable and sortable, into PDF files which did not have these capabilities, court cited Advisory Committee Notes to the 2006 amendment to FRCP 34(a)(1)(A) and found that defendants violated Rule 34 by producing documents which were not searchable or sortable, notwithstanding that plaintiffs did not request the documents in native electronic format; court ruled on various other discovery disputes and awarded plaintiffs monetary sanctions in light of defendants’ “purposeful foot dragging on discovery” and resulting prejudice to plaintiffs

Nature of Case: Class action lawsuit regarding California’s treatment of juvenile wards and parolees

Electronic Data Involved: Databases and other ESI

Tag:Privilege or Work Product Protections