Archive: December 11, 2009

1
Court Rules Mistaken Transmission of Privileged Email Due to Use of “Autofill” Function in Email Did Not Result in Waiver
2
Ex Parte Contact with Independent Forensic Examiner Results in Forfeiture of Opportunity for Forensic Examination and Denial of Motion for Sanctions with Prejudice
3
Supreme Court of Washington Holds Trial Court Did Not Abuse Discretion in Imposing $8,000,000 Default Judgment Pursuant to CR 37 for Defendant’s Willful Discovery Violations

Court Rules Mistaken Transmission of Privileged Email Due to Use of “Autofill” Function in Email Did Not Result in Waiver

Multiquip, Inc. v. Water Mgmt. Systs., LLC, 2009 WL 4261214 (D. Idaho Nov. 23, 2009)

When responding to an email communication from his attorney, defendant mistakenly sent his message to a third party.  As a result, the email was eventually provided to opposing counsel in the litigation.  Plaintiff’s counsel refused to return the email upon defense counsel’s request and filed a motion for a protective order to which the email was attached.  Defendants then filed a motion to exclude plaintiff’s use of the email.  Defendant David Muhs explained that the mistaken transmission occurred when the autofill feature on his email program supplied the wrong address in place of that of the intended recipient.  Conducting its analysis pursuant to Fed. R. Evid. 502, the court determined that privilege had not been waived.

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Ex Parte Contact with Independent Forensic Examiner Results in Forfeiture of Opportunity for Forensic Examination and Denial of Motion for Sanctions with Prejudice

G.K. Las Vegas Ltd. P’ship v. Simon Prop. Group, 2009 WL 4283086 (D. Nev. Nov. 30, 2009)

Following a determination that defendants participated in improper ex parte communications with an independent, court-appointed forensic expert and thus destroyed its impartiality, the district court held that defendants had forfeited their right to a forensic examination of plaintiffs’ relevant computer systems and modified its prior order to deny defendants’ motion for spoliation sanctions with prejudice.

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Supreme Court of Washington Holds Trial Court Did Not Abuse Discretion in Imposing $8,000,000 Default Judgment Pursuant to CR 37 for Defendant’s Willful Discovery Violations

Magaña v. Hyundai Motor Am., 220 P.3d 191 (Wash. 2009)

Plaintiff sustained injuries in an automobile accident that he alleged were caused in part by a defective seat design which allowed the seat to collapse.  The case went to trial and plaintiff was awarded $8,000,000.  The verdict was reversed on appeal for reasons related to plaintiff’s expert’s testimony and a new trial on the issue of liability was ordered.

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