Archive - December 24, 2008

Washington Adopts Test for Determining Waiver by Inadvertent Disclosure, Finds Attorney-Client Privilege Waived
California Legislature Reconsiders E-Discovery Amendments

Washington Adopts Test for Determining Waiver by Inadvertent Disclosure, Finds Attorney-Client Privilege Waived

Sitterson v. Evergreen School Dist., 2008 WL 4981630 (Wash. Ct. App. Nov. 25, 2008)

In this case, plaintiff brought suit against the defendant, a school district (“the District”), for breach of contract and quantum meruit following termination of his contract as a financial advisor.  About one month after filing suit, plaintiff served his requests for production.  In response, the District produced approximately 439 pages of documents, including four confidential letters between the District and its attorney regarding the litigation.  Three years later and ten days before trial, plaintiff sent copies of his proposed exhibits to the District, including the four confidential letters.  The District objected to their admission on the first day of trial, arguing that they were protected by attorney-client privilege.  In response to a question from the trial court regarding his role in the production of the letters, the attorney for the District responded that the letters did “go through” him and he stated, “…I guess I just wasn’t thorough enough.”  The trial court denied the District’s motion to exclude. Eventually, the jury awarded plaintiff $151,000.

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California Legislature Reconsiders E-Discovery Amendments

On December 1, 2008 California Assembly Member Noreen Evans introduced Assembly Bill 5, the “Electronic Discovery Act” – a bill that would amend California’s Civil Discovery Act to include rules governing the discovery of electronically stored information.  As stated in AB 5:

This bill would establish procedures for a person to obtain discovery of electronically stored information, as defined, in addition to documents, tangible things, and land or other property, in the possession of any party to the action.  This bill would permit discovery by the means of copying, testing, or sampling, in addition to inspection of documents, tangible things, land or other property, or electronically stored information.

The proposed amendments closely track several of the 2006 e-discovery amendments to the Federal Rules of Civil Procedure.

This bill is virtually identical to the “original” e-discovery bill, Assembly Bill 926, vetoed by Governor Arnold Schwarzenegger earlier this year.  The notable exception is the inclusion of an urgency clause which would make the bill effective immediately upon signing.

To read the full text of Assembly Bill 5, click here.

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