Archive: September 24, 2009

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Upcoming Events – October
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Failure to Timely “Re-Assess its Procedures and Re-Check its Production” upon Notice of Inadvertent Production Results in Waiver of Later Identified Documents

Upcoming Events – October

IQPC: Information Retention & E-Disclosure Management, Europe

September 30 – October 1, 2009
Marriott Hotel
Auguste Orts 3-7/Grand Place
1000 Brussels, Belgium

K&L Gates partner David Cohen will present “Turning Theory Into Practice: Practical Steps to Take NOW to Reduce E-Disclosure/E-Discovery Risks and Costs” on Wednesday, September 30th at 11:00 AM. This presentation will provide a “roadmap” of practical steps to take when dealing with e-disclosure challenges, including improving records management and other concrete measures to reduce liability, exposure, and cost.

Click here to learn more.

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Failure to Timely “Re-Assess its Procedures and Re-Check its Production” upon Notice of Inadvertent Production Results in Waiver of Later Identified Documents

U.S. v. Sensient Colors, Inc., 2009 WL 2905474 (D.N.J. Sept. 9, 2009)

Defendant moved to compel the production of 214 inadvertently produced documents.  Plaintiff objected, arguing that the parties’ discovery agreement precluded the waiver of privilege as to inadvertently produced documents.  Noting courts’ general disapproval of “blanket” disclosure provisions and finding that the parties’ agreement did not in fact preclude waiver in all situations, the court analyzed the question of waiver pursuant to FRE 502.  The court identified three categories of inadvertently produced documents based upon the timing of the notice of their inadvertent production to the plaintiff.  The court found privilege was not waived as to the first category of documents (those brought to plaintiff’s attention the earliest).  However, noting that plaintiff was on notice of the deficiencies of his process as a result of the first notification of inadvertent production, and that despite such notice plaintiff failed to “re-assess” its document production, the court found the privilege had been waived as to the remaining categories.

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