Privilege or Work Product Protections – Page 36

Corvello v. New England Gas Co., Inc., 243 F.R.D. 28 (D.R.I. 2007)

Dec 01 2007

Key Insight: Court concluded that any privilege that may have attached to documents inadvertently produced on CD was waived, since non-party?s counsel failed to exercise due care when he produced CD without first reviewing it, failed to immediately accept party?s offer to temporarily halt its document review after he was alerted that some of the documents on CD appeared to be internal communications with counsel, and furnished an inadequate privilege log after two-week delay

Nature of Case: Litigation between gas company and landowners

Electronic Data Involved: Privileged documents inadvertently produced on CD

Frees, Inc. v. McMillian, 2007 WL 1308388 (W.D. La. May 1, 2007)

Dec 01 2007

Key Insight: District court upheld magistrate judge’s January 22, 2007 memorandum order and related protective order, as such orders were not clearly erroneous or contrary to law

Nature of Case: Design firm sued former vice president under Computer Fraud and Abuse Act

Electronic Data Involved: Former employee’s home computer and new work computer

Gragg v. Int’l Mgmt. Group, 2007 WL 1074894 (N.D.N.Y. Apr. 5, 2007)

Dec 01 2007

Key Insight: After weighing the four factors identified as relevant under the federal common law of waiver, and particularly given the casual nature of defendants’ efforts to insure against inadvertent disclosure, court found that inadvertent production of four privileged emails (of 200 total produced on CD-ROM) effected limited waiver; plaintiff’s counsel would be permitted to keep the privileged emails and to utilize them freely in connection with the pending litigation

Nature of Case: Breach of contract and fraud

Electronic Data Involved: Privileged emails

C.T. v. Liberal Sch. Dist., 2007 WL 1536806 (D. Kan. May 24, 2007)

Dec 01 2007

Key Insight: Denying motion to compel plaintiff to produce documents listed on privilege log, court nonetheless found log inadequate and ordered plaintiff to submit an amended privilege log and, further, to identify whether or not each email listed is a ?string? or ?strand? email and, if so, to list each email within a strand as a separate entry in the privilege log

Nature of Case: Allegations of sexual abuse and harassment

Electronic Data Involved: Email

In re Maura, 842 N.Y.S.2d 851 (N.Y. Sur. Ct. 2007)

Dec 01 2007

Key Insight: Court ordered that non-party law firm’s hard drive be imaged, and that law firm (not plaintiff) would be entitled to select computer forensic expert to conduct cloning process; court further ordered parties to confer on details and set basic timeframe for cloning and review of material, and ruled that plaintiff would be responsible for costs associated with search and production

Nature of Case: Proceeding to determine the validity of a right of election

Electronic Data Involved: Law firm computer

Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 2122438 (D. Kan. July 20, 2007)

Dec 01 2007

Key Insight: Court granted defendants’ motion for clarification and ruled that defendants would be permitted to conduct limited ex parte interviews with plaintiff’s former employee relating solely to particular database at issue, including the underlying functioning of the Advantx database and how Heartland, in particular, used that database and any custom-designed reports which Heartland may have developed; defendants were also free to ask former employee to operate the version of Heartland’s Advantx program and the Advantx database that Heartland produced in this case and were free to ask him to run searches using the program and to prepare any customized reports defendants may request from the database

Nature of Case: Antitrust and tortious interference litigation

Electronic Data Involved: Interviews with former employee re database used by plaintiff

Wachtel v. Guardian Life Ins., 2007 WL 1752036 (D.N.J. June 18, 2007) (Unpublished)

Dec 01 2007

Key Insight: Court found that plaintiff made a prima facie showing that crime-fraud exception to attorney-client privilege may apply with respect to the documents identified in Health Net’s privilege log, citing numerous instances of discovery misconduct including Health Net’s failure to disclose to the court during three years of discovery that emails older than 90 days were never searched when proper discovery requests sought historic information from a period more than 90 days earlier

Nature of Case: Class action relating to administration of health care plans

Electronic Data Involved: Email

Lockheed Martin Corp. v. L-3 Communications Corp., 2007 WL 2209250 (M.D. Fla. July 29, 2007)

Dec 01 2007

Key Insight: Court ordered plaintiff to produce certain documents related to forensic examinations of former employee’s computers, including electronic documents or portions thereof retrieved from the computers, and all related “fact” work product since substantial need had been demonstrated; court further ordered plaintiff’s IT employee to answer questions regarding forensic examinations at deposition, finding inadequate plaintiff’s proposal that witness respond to unanswered questions through an errata sheet since LMC’s counsel instructed witness not to testify on broad areas of inquiry and counsel was unable to fully develop lines of questioning

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Results of forensic computer analysis

ABN Amro Mortgage Group, Inc. v. Promised Land Mortgage LLC, 2007 WL 101812 (S.D. Ind. Jan. 8, 2007)

Dec 01 2007

Key Insight: Court analyzed application of attorney/client privilege and work product protection to information entered into a database and printed in spreadsheet format, comparing database to a “file cabinet” with “drawers” and “file folders”; court ultimately ordered production of a master spreadsheet with several categories of information redacted

Nature of Case: Contract and tort claims arising from alleged mortgage fraud

Electronic Data Involved: Database, spreadsheets

Garcia v. Berkshire Life Ins. Co. of Am., 2007 WL 3407376 (D. Colo. Nov. 13, 2007)

Dec 01 2007

Key Insight: Finding that all emails on DVD appeared to constitute “crucial evidence” in the case, court ordered their production notwithstanding plaintiff’s claimed burden and expense to review them and even though some of them may prove to be irrelevant to the dispute; court rejected plaintiff’s counsel’s claim of technical incompetence, finding that once he was on notice of potential problems he was obligated to seek competent professional assistance to ascertain the truth about the contents of DVD

Nature of Case: Plaintiff alleged bad faith breach of insurance agreement

Electronic Data Involved: DVD containing email sent or received by plaintiff through University of Denver email account

Tag:Privilege or Work Product Protections