Privilege or Work Product Protections – Page 34

In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606 (E.D. Va. 2008)

Dec 01 2008

Key Insight: District court upheld magistrate judge’s order quashing State Farm’s subpoena to AOL because: (1) plain language of Electronic Communications Privacy Act prohibited AOL from producing requested email because a civil discovery subpoena was not a disclosure exception under Act; (2) State Farm’s subpoena imposed undue burden because subpoena was overbroad; and (3) court where action was pending was better posed to decide privilege issues

Nature of Case: Former insurance adjusters alleged that State Farm committed fraud in connection with handling of Hurricane Katrina damage claims

Electronic Data Involved: Email stored on AOL’s servers

Bianco v. GMAC Mortgage Corp., 2008 WL 4661241 (E.D. Pa. Oct. 22, 2008)

Dec 01 2008

Key Insight: Court denied plaintiff?s motion to compel production of defendant?s general counsel?s laptop for imaging despite testimony that the laptop had been used to create some of the documents at issue where there was no evidence of discovery misconduct, where defendant searched extensively for and produced documents responsive to plaintiff?s requests, and where the ?intrusive search? would likely lead to the disclosure of privileged and confidential information ; court noted that Rule 34 does not create ?a routine right of direct access to a party?s electronic information system, although such access may be justified in some circumstances?

Nature of Case: Discrimination and retaliation in violation of Americans with Disabilities Act

Electronic Data Involved: Hard drive, emails

Aecon Buildings Inc. v. Zurich N. Am., 253 F.R.D. 655 (W.D. Wash. 2008)

Dec 01 2008

Key Insight: Court imposed significant monetary sanction upon finding that defendant violated both the letter and spirit of discovery rules where defendant deliberately concealed existence of electronically stored information by making repeated misrepresentations regarding completeness of production and the existence of additional information and for defendant?s failure to produce the necessary privilege log

Nature of Case: Bad faith failure to defend or indemnify

Electronic Data Involved: Notes made in electronically stored case file

Outside the Box Innovations, LLC v. Travel Caddy, Inc., 2007 WL 5155945 (N.D. Ga. Mar. 27, 2008)

Dec 01 2008

Key Insight: Ruling on a number of discovery issues, court found that defendant?s production of electronic documents was proper, notwithstanding fact that production included numerous non-working files as well as unresponsive and offensive content; court noted that inappropriate and inoperable files represented small percentage of total documents produced, that defendant appeared to have been diligent in attempting to minimize such problems, and that ?it is likely that all electronic document production carries some possibility of technical difficulties?

Nature of Case: Patent infringement

Electronic Data Involved: Unspecified electronic files

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

Tag:Privilege or Work Product Protections