S2 Automation LLC v. Micron Tech., Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3150387 (D.N.M. July 23, 2012)
Key Insight: Over objection of plaintiff, court entered non-waiver and claw-back order pursuant to FRE 502(d)
Electronic Data Involved: ESI
S2 Automation LLC v. Micron Tech., Inc., No. CIV 11-0884 JB/WDS, 2012 WL 3656454 (D.N.M. Aug. 9, 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
Navajo Nation v. United States, —Fed. Cl.—, 2012 WL 5398792 (Fed. Cl. Nov. 6, 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
Dubler v. Hangsterfer?s Labs., 2011 90244 (D.N.J. Jan. 11, 2011)
Key Insight: Where defendant produced privileged emails and sought to preclude waiver arising therefrom, the court rejected defendant?s assertions that it did not intend to waive privilege and, noting the lack of evidence regarding reasonable steps to prevent disclosure and that defendant had not yet requested the return of the documents at issue, found that privilege had been waived
Nature of Case: Employement litigation
Electronic Data Involved: Privileged emails
Seyler v. T-Sys. N. Amer., Inc., 2011 WL 196920 (S.D.N.Y. Jan. 21, 2011)
Key Insight: Court found no waiver of plaintiff?s claims of privilege resulting from the production of one privileged email where, pursuant to FRE 502(a) the waiver was not intentional as established by the sworn statement of plaintiff?s counsel that he was not aware that the plaintiff?s sister, the other party to the relevant email, was an attorney
Nature of Case: Hostile work environment, retaliation, intentional infliction of emotional distress
Electronic Data Involved: Privileged email
Estate of Carlock v. Williamson, 2011 WL 308608 (C.D. Ill. Jan. 27, 2011)
Key Insight: Court found no waiver of privilege where the email at issue was inadvertently produced (as the result of plaintiff?s access to defendants? servers); where defendants took sufficiently reasonable steps to prevent disclosure as evidenced by the parties? ?repeated discussions about key word limitations? and ?broad protective order? and because ?Defendants repeatedly and specifically emphasized their concern over how Plaintiff was handling any attorney-client communications it came across?; and where defendants acted promptly to rectify the problem upon receiving notice of the inadvertent production. Accordingly, court granted defendant?s motion to strike plaintiff?s motion for sanctions which relied on the privileged email but left open plaintiff?s opportunity to re-file upon removing all reference to the privileged message
Nature of Case: Litigation arising from death of inmate while incarcerated
Electronic Data Involved: Litigation hold spreadsheet, privileged email
In re Royce Homes, LP, No. 09-32467-H4-7, 2011 WL 873428 (Bankr. S.D. Tex. Mar. 11, 2011)
Key Insight: Court rejected employee of debtor?s assertions of privilege where employee failed to properly assert such privilege in his privilege log; assuming arguendo that emails were privileged, court found that employee had waived privilege in several ways: 1) employee had no reasonable expectation of privacy in communications sent or received on employer?s computer system and thus had no privilege in communications with his attorney; 2) employee provided unqualified access to emails by third parties, one of whom he asked to review his emails to identify which were privileged despite her lack of legal education; and 3) employee allowed trustee to have unqualified access to the emails by failing to object to their production to the trustee when informed that the emails would be produced
Nature of Case: Bankruptcy
Electronic Data Involved: Emails between employee and attorney sent on company computer system
Morris v Scenera Research LLC, No. 09 CVS 19678, 2011 WL 3808544 (N.C. Super. Ct. Aug. 26, 2011)
Key Insight: Court upheld clawback agreement between the parties which held that inadvertent production would not result in waiver; where parties entered into 26(f) agreement regarding what metadata need be produced but where plaintiff moved to compel production of additional fields because those provided did not allow him to search effectively or identify the source of particular documents, the court entered into an extensive analysis of the ?form? and ?organization? requirements in Rule 34 and withheld ruling until defendant could provide evidence regarding the burden of providing an index that could allow identification of the source of each document
Nature of Case: State employment claims
Electronic Data Involved: ESI, metadata
Stambler v. Amazon.com, No. 2:09-CV-310 (DF), 2011 WL 10538668 (E.D. Tex. May 23, 2011)
Key Insight: Where parties agreed on search terms to identify responsive materials and defendants (the producing parties) later argued that the terms had produced overly-burdensome results, court held that defendants had the burden of ?justifying non-production or reduced production? because they had agreed to the terms and that they had failed to ?justify protection under Rule 26(b)(2)(C)(iii)? but, acknowledging the expected costs of review and production, indicated that defendants could choose to produce documents without reviewing the results in light of the ability to identify privilege using key words and the parties? claw back agreement in their protective order; recognizing the potential burden to plaintiffs if defendants chose to produce documents without review, the court indicated the parties could confer to revise search terms if they so chose
Nature of Case: Patent infringement
Electronic Data Involved: Emails
Datel Holdings, LTD v. Microsoft Corp., No. C-09-05535 EDL, 2011 WL 866993 (N.D. Cal. Mar. 11, 2011)
Key Insight: Where despite reasonable measures to prevent the production of privileged materials a software glitch resulted in the failure to identify privileged portions of emails that were then produced and where, upon learning of the disclosure, counsel acted promptly to rectify the error, the court found privilege had not been waived by the inadvertent production pursuant to FRE 502; court?s analysis included discussion of meaning of ?inadvertent?
Electronic Data Involved: Email chain