FRCP 26(b)(5)(B) or FRE 502 – Page 6 – Electronic Discovery Law

Excel Gold Products, Inc. v. MacNeill Eng?g Co., Inc., No. 11 C 1928, 2012 WL 1570772 (May 3, 2012)

Dec 01 2012

Key Insight: Despite finding that plaintiff had not produced sufficient information regarding its review procedures to establish that reasonable steps were taken to prevent inadvertent disclosure of privileged information, the court found that concerns of ?overriding fairness? precluded waiver where plaintiff had attempted to enter into a clawback agreement and where defense counsel?s rejection of such an agreement (because there was a protective order) could ?readily? have been interpreted to mean that inadvertently produced materials would be returned without dispute; plaintiff was ordered to conduct privilege review of documents produced, to the extent not already done

Electronic Data Involved: Inadvertently produced ESI

Jacob v. Duane Reade, Inc., No. 11 Civ. 0160(JMO)(THK), 2012 WL 651536 (S.D.N.Y. Feb. 28, 2012)

Dec 01 2012

Key Insight: Court found inadvertent production of partially privileged email constituted waiver where, despite reasonable efforts to prevent production, defendants allowed questioning regarding the email at deposition and did not realize the email was privileged and request its return until months later (when preparing for a separate deposition) and thus ?did not act promptly to rectify the disclosure?

Nature of Case: FLSA

Electronic Data Involved: Privileged email

Kilopass Tech., Inc. v. Sidense Corp., No. C-10-02066 SI, 2012 WL 1534065 (N.D. Cal. May 2, 2012)

Dec 01 2012

Key Insight: Conducting waiver analysis pursuant to Fed. R. Evid. 502(b), court found that plaintiff?s efforts to preclude disclosure were not reasonable where plaintiff claimed the inadvertent disclosure was the result of mistakes on the party of the party, its counsel, and its vendor, including the client?s failure to provide names of all law firm with which it had worked, the vendor?s failure to run a privilege search on all production batches, and counsel?s failure to adequately review the documents identified for production before providing them to opposing counsel; court also relied on the large number of documents inadvertently produced?more than one in 50?reasoning, ?[t]he high proportion of privilege documents evidences a failure on Kilopass?s part to properly screen the documents.?

Nature of Case: Patent infringement

Electronic Data Involved: ESI

S2 Automation LLC v. Micron Tech., Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3150387 (D.N.M. July 23, 2012)

Dec 01 2012

Key Insight: Over objection of plaintiff, court entered non-waiver and claw-back order pursuant to FRE 502(d)

Electronic Data Involved: ESI

Tadayon v. Greyhound Lines, Inc, No. 10-1326, 2012 WL 2048257 (D.D.C. June 6, 2012)

Dec 01 2012

Key Insight: In this case, following analysis of several discovery motions, Magistrate Judge Facciola wrote of the need for cooperation: “III. High Noon. As explained at the discovery status hearing held on April 30, 2012, there is a new sheriff in town-not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation.FN3 First, the parties will meet and confer in person in a genuine, good faith effort. . . .”; also, court ruled that where Clawback agreement imposed no conditions on right to recall privileged documents, defendant could do so irrespective of alleged negligence

Nature of Case: Patent Infringement

Electronic Data Involved: All discovery

S2 Automation LLC v. Micron Tech., Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3656454 (D.N.M. Aug. 9, 2012)

Dec 01 2012

Key Insight: Court addressed a myriad of discovery disputes related to privilege logs, format of production, adequacy of plaintiff?s search for responsive materials, and the adequacy of its responses to defendant?s requests and ruled, among other things, that: plaintiff?s production in PDF was unacceptable and that production must be in native format or in the format requested by defendant and that plaintiff?s counsel?s statements (related to the court by sworn affidavit from defendant) were sufficient to put the adequacy of his compliance with Rule 26(g) in question and require production of plaintiff?s search strategy, including its interaction with counsel; court also compelled responses to a myriad of individual requests and ordered plaintiff to pay 80% of defendant?s fees in bringing this motion

Electronic Data Involved: ESI

SEC v. Mercury Interactive LLC, No. C 07-02822 WHA, 2012 WL 4466582 (N.D. Cal. Sept. 25, 2012)

Dec 01 2012

Key Insight: Where, the SEC mistakenly deleted documents based on a miscommunication/misunderstanding with the producing party including the mistaken belief that the documents were maintained elsewhere (e.g. by the producing party or its counsel) and thereafter could not produce them when requested, the magistrate judge found that the deletion was not in bad faith and that an adverse inference was not warranted where defendants failed to show the relevance of the missing documents; on appeal the District Court denied defendants? motion for relief from the magistrate judge?s order

Nature of Case: SEC investigation

Electronic Data Involved: ESI

Navajo Nation v. United States, —Fed. Cl.—, 2012 WL 5398792 (Fed. Cl. Nov. 6, 2012)

Dec 01 2012

Key Insight: To settle disagreement between the parties, court entered discovery order addressing several issues including format of production, categories of ESI presumptively exempt from discovery absent a showing of good cause, and inadvertent production, among others

Electronic Data Involved: ESI

Clark Cnty. v Jacobs Facilities, Inc., No. 2:10-cv-00194-LRH-PAL, 2012 WL 4609427 (D. Nev. Oct. 1, 2012)

Dec 01 2012

Key Insight: Despite inadvertently producing (or discussing without objection) the at-issue document as many as times thirteen times, the court found that privilege was not waived where the parties stipulated that inadvertent production would not result in waiver and where the analysis under Fed R Evid 502 resulted in a finding that reasonable steps were taken to prevent disclosure, including key word searches for privileged documents, and that prompt steps were taken to secure the document?s return upon defendant learning of the inadvertent production; notably, it appeared that the document was not identified either because it was labeled ?client-attorney? rather than ?attorney-client?

Nature of Case: Alleged gross mismanagement of construction project result in significant costs to plaintiff

Electronic Data Involved: ESI

U.S. ex rel Baklid-Kunz v. Halifax Hosp. Med. Ctr., No. 6:09-cv-1002-Orl-31TBS, 2012 WL 5415108 (M.D. Fla. Nov. 6, 2012)

Dec 01 2012

Key Insight: Addressing the proper logging of privileged emails, the court adopted the position ?for which there is overwhelming support? (as cited in the opinion) ?that each email in an email string must be listed separately so that the court (and the opposing party) may make an attorney-client privilege determination with regard to each email in the string.?

Nature of Case: violations of False Claims Act

Electronic Data Involved: Emails

Tag:FRCP 26(b)(5)(B) or FRE 502