Privilege or Work Product Protections – Page 38

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

In re Benun, 339 B.R. 115 (Bankr. D.N.J. 2006)

Dec 01 2006

Key Insight: Where trustee, in a practical attempt to maximize assets and minimize expenses, attempted to reach blanket accord with patent holder’s counsel that document inspection would not serve as a waiver of the attorney-client privilege, disclosure of privileged document was inadvertent and did not constitute waiver; court denied patent holder’s motion to depose attorney who had represented both debtor and his corporation in infringement action and compel production of certain documents from attorney’s files

Nature of Case: Lengthy adversary proceeding brought by party suing debtor for patent infringement

Electronic Data Involved: Hard copy documents and “massive hard drive” assembled by bankruptcy trustee for safekeeping

Employers Ins. Co. of Wausau v. Nationwide Mut. Fire Ins. Co., 2006 WL 1120632 (E.D.N.Y. Apr. 26, 2006)

Dec 01 2006

Key Insight: Court found that the computerized claim file was clearly relevant, irrespective of whether plaintiffs intended to use the documents or not in the litigation, and ordered plaintiffs to produce the complete claim file, including hard copies and electronic documents, to the extent such documents were not privileged or prepared for the sole purpose of “probable” or “imminent” litigation

Nature of Case: Insurance coverage

Electronic Data Involved: Electronic claim file

Ayers v. SGS Control Servs., 2006 WL 859362 (S.D.N.Y. Apr. 3, 2006)

Dec 01 2006

Key Insight: Ruling on defendants’ request for reconsideration and after viewing spreadsheets in camera, magistrate ordered defendants to file sworn affirmation and memorandum of law identifying with specificity the allegedly privileged information they contended was in spreadsheets; court further ordered that the contested records be redacted and produced to plaintiffs

Nature of Case: Fair Labor Standards Act claims

Electronic Data Involved: Spreadsheets containing payroll and timekeeping data

Kingsway Fin. Servs., Inc. v. Pricewaterhouse-Coopers LLP, 2006 WL 1520227 (S.D.N.Y. June 1, 2006) and 2006 WL 1295409 (S.D.N.Y. May 10, 2006)

Dec 01 2006

Key Insight: Magistrate ruled that, although litigation hold notices were relevant (“Like a party’s destruction of relevant documents, if plaintiff’s document retention notices are patently deficient or inadequate in some other respect, they might support a negative inference concerning the merits of plaintiff’s claims.?), they were privileged and not subject to production; plaintiff’s failure to list them in privilege log did not effect waiver because notices were not in existence at the time plaintiff?s response to the requests for production was due

Nature of Case: Acquiring corporation sued acquired corporation’s officers, directors, and independent auditor for securities fraud and other torts

Electronic Data Involved: Litigation hold notices issued by plaintiff

Delta Fin. Corp. v. Morrison, 819 N.Y.S.2d 908 (N.Y. Sup. Ct. 2006)

Dec 01 2006

Key Insight: Court ordered party to conduct additional searches of data restored from backup tapes, and to restore and search a sample of additional backup tapes, shifting all initial costs to the requesting party; court further directed producing party to prepare an affidavit detailing the number of responsive documents found and the costs and expenses associated with the processes, including but not limited to attorneys fees for privilege review, which would assist the court in determining whether a full search would be necessary and whether further cost-shifting was warranted

Nature of Case: Fraud and breach of contract claims

Electronic Data Involved: Email and non-email electronic documents restored from backup tapes

Yancey v. GMC, 2006 WL 2045894 (N.D. Ohio June 26, 2006)

Dec 01 2006

Key Insight: Court ordered GM to produce “Kentucky Firefighter” and “Dancing Granny” emails if said emails can currently be found on GM’s email system, but GM would not be required to retrieve the emails from outside sources if they were not in GM’s possession; court further ordered that GM produce at its own expense the hard drives of various GM employees requested by plaintiff

Nature of Case: Employment discrimination

Electronic Data Involved: Email and hard drives

S.E.C. v. Brady, 2006 WL 3301865 (N.D. Tex. Oct. 16, 2006)

Dec 01 2006

Key Insight: Court sustained objection to portion of defendant’s subpoena based on undue burden, where potentially responsive electronic data was estimated to be 32,222,000 pages and there were over 226 boxes of hard copy documents, and vast majority of responsive documents were in the possession of the SEC and had either already been produced by the SEC to Brady, or would shortly be produced

Nature of Case: Securities litigation

Electronic Data Involved: Email and electronic data

In re Exxon Corp., 208 S.W.3d 70 (Tex. App. 2006)

Dec 01 2006

Key Insight: After concluding that personal injury plaintiffs had failed to establish any document withholding or other discovery abuse by Exxon, state appellate court conditionally granted writ of mandamus and directed the trial court to vacate its orders requiring Exxon to present a deponent to testify about documents that had been requested, specifically as to: (1) existence; (2) electronic creation, duplication and storage; (3) document retention and destruction policies; (4) location; (5) organization, indexing and filing; (6) method of search; (7) completeness; and (8) authenticity

Nature of Case: Petition for writ of mandamus

Electronic Data Involved: Rule 30(b)(6) deposition

United States ex rel. Parikh v. Premera Blue Cross, 2006 WL 2927700 (W.D. Wash. Oct. 11, 2006)

Dec 01 2006

Key Insight: Court employed five-factor balancing test to determine that, under totality of circumstances, defendant?s inadvertent disclosure of privileged emails did not effect waiver; court granted defendant?s motion for return of the privileged documents

Nature of Case: Allegations of Medicare fraud and retaliatory discharge

Electronic Data Involved: Privileged emails on CD

Tag:Privilege or Work Product Protections