Archive: June 16, 2006

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Court Finds Subject Matter Waiver: Plaintiff Entitled to Retain Privileged Email and Inquire into All Related Communications
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When it Absolutely, Positively Does Not Merit an Adverse Inference Instruction, FedEx Defeats Motion in Limine

Court Finds Subject Matter Waiver: Plaintiff Entitled to Retain Privileged Email and Inquire into All Related Communications

Crossroads Sys., Inc. v. Dot Hill Sys. Corp., 2006 WL 1544621 (W.D. Tex. May 31, 2006)

In this patent case, Dot Hill Systems Corporation (“Dot Hill”) produced to Crossroads Systems, Inc. (“Crossroads”) an email drafted by Thomas Lavan (“Lavan”), Director of Intellectual Property for Chaparral Network Storage, Inc. (“Chaparral”), and sent to Chaparral’s outside patent counsel, Alan Davis. (During the litigation, Dot Hill acquired Chaparral, and Crossroads asserted patent infringement by Dot Hill based on Dot Hill’s original products and Chaparral’s products.) Dot Hill’s 30(b)(6) witness, Dana Kammersgard, was asked questions about the email during her deposition, but no objections were made based on attorney-client privilege. Read More

When it Absolutely, Positively Does Not Merit an Adverse Inference Instruction, FedEx Defeats Motion in Limine

Durst v. FedEx Express, 2006 WL 1541027 (D.N.J. June 2, 2006)

Plaintiff (“Durst”) had been employed as a part-time courier by FedEx. He contended that he was required to drive vehicles with “safety issues” that suffered regular breakdowns. One day, he was unable to insert the key into the ignition of his truck. FedEx sent a replacement vehicle, but instead of finishing his route, Durst returned to the station and refused to deliver remaining packages. He based this refusal on alleged unaddressed safety concerns and prior vehicle breakdowns. Durst received a termination letter two days later. Litigation ensued, FedEx unsuccessfully moved for summary judgment, and Durst filed a motion in limine seeking an adverse inference that FedEx destroyed or failed to maintain evidence that would have been favorable to Durst and unfavorable to FedEx. Such evidence included accident reports, towing records, Vehicle Inspection Reports (regularly filled out by FedEx couriers), vehicle repair histories, and email identifying repeated problems with vehicles. Read More

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