Privilege or Work Product Protections – Page 37

Polycom, Inc. v. Codian Ltd., 2007 WL 194588 (E.D. Tex. Jan. 22, 2007)

Dec 01 2007

Key Insight: Court denied motion to compel production of defendants’ source code in native format to be maintained in confidence at Los Angeles office of plaintiffs’ counsel in light of security concerns and technical support issues raised by defendants, and since defendants had already produced an electronic version of the source code and plaintiffs’ consultants had been inspecting the code for several months at defense counsel’s Palo Alto office; court rejected plaintiff’s argument that current system intruded on plaintiff’s work product

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Muro v. Target Corp., 2007 WL 3254463 (N.D. Ill. Nov. 2, 2007)

Dec 01 2007

Key Insight: District court upheld magistrate judge?s ruling that Target’s ?litigation hold? notices were subject to attorney-client privilege and work product protection since notices were communications of legal advice from corporate counsel to corporate employees regarding document preservation; however, court sustained objection to magistrate’s ruling that privilege log was inadequate for failing to separately itemize each individual email quoted in an email string, concluding that Rule 26(b)(5)(A) does not require separate itemization of each individual email quoted in an email string

Nature of Case: Putative class action alleging violations of Truth in Lending Act

Electronic Data Involved: Litigation hold notices; privileged email

G.D. v. Monarch Plastic Surgery, P.A., 2007 WL 201154 (D. Kan. Jan. 24, 2007)

Dec 01 2007

Key Insight: Court granted motion to compel defendants to produce the subject computer for inspection, appointed an expert to conduct the examination whose fees would be shared by the parties, and set out two distinct procedures for production of the computer ? one for reviewing the computer?s hardware, software, and operating system and one for reviewing information stored on the computer

Nature of Case: Plaintiffs claimed defendants wrongfully disclosed plaintiffs’ confidential medical information stored on a computer hard drive by placing the computer on the curb for trash disposal

Electronic Data Involved: Computer hard drive of subject computer

Adams Land & Cattle Co. v. Hartford Fire Ins. Co., 2007 WL 4522627 (D. Neb. Dec. 18, 2007)

Dec 01 2007

Key Insight: Where plaintiff?s counsel became aware of mistaken production of privileged email during June deposition but waited until September to contact defense counsel to explain the inadvertent disclosure and request that defendant destroy and agree not to use the email, court applied five-part test and found ?no overriding interest of justice that requires the Court to relieve plaintiff’s counsel of its production errors?

Nature of Case: Insurance coverage

Electronic Data Involved: Privileged email

Self v. Equilon Enters., LLC, 2007 WL 427964 (E.D. Mo. Feb. 2, 2007)

Dec 01 2007

Key Insight: In order issued after parties’ status hearing on production of electronic documents, court recounted history of discovery conferences and orders addressing defendants’ production, including court’s prior order directing defendants to produce all emails tagged by the search term “transfer price” whether deemed relevant or not after completing a privilege review, and concluded that, since plaintiffs had not shown that need for further electronic discovery outweighed burdens and costs of retrieving and producing such information, and had not shown that defendants were withholding or ?cherry picking? relevant emails, plaintiffs would bear the costs of all additional email searches, if any

Nature of Case: Breach of contract

Electronic Data Involved: Email

Muro v. Target Corp., 243 F.R.D. 301 (N.D. Ill. 2007)

Dec 01 2007

Key Insight: Court granted plaintiff?s motion to compel production of documents listed on defendants? privilege log, faulting among other things Target?s failure to identify and describe separately on its privilege log each allegedly privileged message within a string of email communications

Nature of Case: Putative class action alleging violations of Truth in Lending Act

Electronic Data Involved: Privileged email

Cambrians for Thoughtful Dev., U.A. v. Didion Milling, Inc., 2007 WL 5618671 (W.D. Wis. Nov. 27, 2007)

Dec 01 2007

Key Insight: Rejecting plaintiff?s claims that work product protection extended only to documents prepared in anticipation of the ongoing litigation, court denied motion to compel email strings between attorney and employees of defendant prepared in anticipation of government enforcement action, especially where enforcement action and ongoing litigation were closely related, as was the case here

Nature of Case: Violations of Clean Air Act

Electronic Data Involved: Email

ACS Consultant Co., Inc. v. Williams, 2007 WL 674608 (E.D. Mich. Mar. 5, 2007)

Dec 01 2007

Key Insight: Court quashed subpoena issued by plaintiff directing YAHOO! Inc. to produce all emails sent or received by individual defendant during specific time period in light of privacy and privilege concerns, but advised that plaintiff could obtain a new subpoena that was limited in scope

Nature of Case: Breach of employment agreement and wrongful termination

Electronic Data Involved: Email

Iridex Corp. v. Synergetics, Inc., 2007 WL 781254 (E.D. Mo. Mar 12, 2007)

Dec 01 2007

Key Insight: Where defense expert witnesses testified that defense counsel prepared the first drafts of reports, and revisions and changes were often exchanged through email, and plaintiff contended that it could not tell whether all drafts were produced, nor could it tell who created and/or revised each draft, court ordered defendant to produce copies of all drafts of all expert opinions, together with all communications between defendant?s employees or counsel and expert witnesses regarding the drafts; court further ordered defendant to provide a declaration of counsel confirming full production and explaining the chronology of the revisions and the author of each set of revisions; declaration would be binding on defendant and could be used for cross-examination of expert witnesses

Nature of Case: Patent infringement

Electronic Data Involved: Email and draft expert reports

Bitler Inv. Venture II, LLC v. Marathon Ashland Petroleum LLC, 2007 WL 465444 (N.D. Ind. Feb. 7, 2007)

Dec 01 2007

Key Insight: Where principal of co-plaintiff forwarded 15 email exchanges with counsel to plaintiffs’ testifying expert witness, and expert witness produced them as part of his file even though he stated he did not consider them when forming his opinion, court ordered production of such emails under Rule 26(a)(2)(B)

Nature of Case: Breach of contract and waste

Electronic Data Involved: Privileged emails

Tag:Privilege or Work Product Protections