Privilege or Work Product Protections – Page 41

SEC v. Beacon Hill Asset Mgmt. LLC, 231 F.R.D. 134 (S.D.N.Y. 2004)

Dec 01 2004

Key Insight: Granting motion to compel contact list printed out from defendant’s contact management software program which was not timely included on defendant’s privilege log, court rejected “frivolous” argument that the contact list technically did not exist until it was printed: “For more than thirty years, Fed.R.Civ . P. 34(a) has included data stored on electronic media as being subject to a Rule 34 request. The fact that the data has not been printed out does not mean that the document does not exist. Indeed, if BH’s argument were meritorious, any party could avoid producing damaging documents through the simple expedient of storing them on electronic media and never printing them out.”

Nature of Case: SEC enforcement action

Electronic Data Involved: Email, spreadsheets and contact list

Computer Assoc. Int’l v. Quest Software, Inc., 56 Fed. R. Serv. 3d 401, 2003 WL 21277129 (N.D. Ill. June 3, 2003)

Dec 01 2004

Key Insight: Applying the Rowe balancing test, court denied producing party’s motion to require requesting party to pay costs associated with computerized privilege review estimated to cost $28,000-40,000

Nature of Case: Copyright infringement, misappropriation of trade secrets

Electronic Data Involved: 8 hard drives

S. Diagnostic Assoc. v. Bencosme, 833 So.2d 801 (Fla. Dist. Ct. App. 2002)

Dec 01 2004

Key Insight: Appellate court granted writ and quashed trial court’s order granting party’s motion for leave to inspect non-party’s computer system; remanded with directions to trial court to craft a narrowly-tailored order that sets parameters and limitations on the inspection

Nature of Case: Insurance bad faith

Electronic Data Involved: Computer system; records of payments to physicians

Felham Enter. (Cayman) Ltd. v. Certain Underwriters at Lloyd’s, 2004 WL 2360159 (E.D. La. Oct. 19, 2004)

Dec 01 2004

Key Insight: Where defendant did not timely object to document requests and belated privilege log was inadequate, court determined that attorney-client privilege and work product protection had been waived and ordered production

Nature of Case: Insurance coverage

Electronic Data Involved: Insurer’s computerized “Z-note” file contents related to particular claim

State v. Cartwright, 336 Or. 408, 85 P.3d 305 (2004)

Dec 01 2004

Key Insight: Concluding that defendant had a right to obtain audiotaped prior statements of witnesses for use in cross-examining the individuals whose statements were on the tapes, court noted in footnote: “The audiotapes at issue here are the functional equivalent of written statements. It would be a towering triumph of form over substance to hold that [defendant’s former employer’s] choice of an electronic, rather than a documentary, mode of preserving the witness’ statements puts the statements beyond the reach of a subpoena duces tecum.”

Nature of Case: Criminal sexual harassment

Electronic Data Involved: Audiotapes of witness’ statements made by defendant’s former employer

In re Gabapentin Patent Litig., 214 F.R.D. 178 (D.N.J. 2003)

Dec 01 2004

Key Insight: Forwarding or copying email or other documents that are prepared by non-lawyers for business purposes to a lawyer does not transform such email or documents into work product

Nature of Case: Patent infringement

Electronic Data Involved: Email

Strasser v. Yalamanchi, 669 So.2d 1142 (Fla. Dist. Ct. App. 1996)

Dec 01 2004

Key Insight: Order allowing plaintiff unrestricted access to defendant’s computer system quashed, because the order allowed plaintiff unrestricted access to defendant’s computer system, including all of his programs and directories, without protection for any privileged or confidential information and without safeguards or restrictions to minimize any potential harm to the computer system

Nature of Case: Breach of contract suit between former partners

Electronic Data Involved: Inspection of computer system to search for financial information

In re Grand Jury Subpoena Dated June 30, 2003, 770 N.Y.S.2d 568 (N.Y. Sup. Ct. 2003)

Dec 01 2004

Key Insight: DA’s application to compel witnesses to answer questions granted: attorney/client privilege did not preclude attorneys representing individuals connected to events surrounding homicide from answering questions about laptop that was instrumentality of crime

Nature of Case: Grand jury proceedings investigating homicide

Electronic Data Involved: Laptop

United States v. Keystone Sanitation Co., 885 F. Supp. 672 (M.D. Pa. 1994)

Dec 01 2004

Key Insight: Inadvertent disclosure of defense attorney’s emails regarding defendants’ disposition of assets in context of massive production constituted subject matter waiver of attorney-client privilege because precautions taken to avoid such disclosure were not reasonable, defendants ordered to produce unredacted attorney billing memoranda relating to issue

Nature of Case: Environmental litigation

Electronic Data Involved: Email

McCabe v. Ernst & Young, LLP, 221 F.R.D. 423 (D.N.J. 2004)

Dec 01 2004

Key Insight: Magistrate recommended that non-parties’ motion for attorneys’ fees and other costs incurred in appearing for depositions and responding to subpoenas be denied, since non-parties failed to object to subpoenas or condition compliance on reimbursement, and an award of $58,000, without notice to plaintiffs, would be tantamount to severe prejudice

Electronic Data Involved: Email and hard copy documents

Tag:Privilege or Work Product Protections