Privilege or Work Product Protections – Page 12

Baranski v. United States, No. 4-11-CV-123 CAS, 2015 WL 3505517 (E.D. Mo. June 3, 2015)

Dec 01 2015

Key Insight: Court found privilege had been waived where at-issue documents were intermingled with non-privileged documents and produced in a consecutively numbered batch, where the government provided no information regarding how the documents were reviewed, where there was an almost 2 year delay until the production of the privilege log, where the documents were not marked as privileged, where approximately 10% (58/570) of the documents produced were privileged, where at least one privileged document was used as an exhibit in deposition without objection and where the government did not discover the allegedly inadvertent disclosure for nearly two years; where defendant provided evidence of the cost and burden of restoring backup tapes (14 weeks of work at a cost of approximately $85,400) court concluded that at-issue emails were not reasonably accessible and declined to compel production where plaintiff failed to establish that the emails may contain significant information

Electronic Data Involved: ESI, emails

Cason-Merenda v. VHS of Michigan, Inc., 118 F. Supp. 3d 965 (E.D. Mich. 2015)

Dec 01 2015

Key Insight: Court declined to compel Plaintiffs? production of all discovery produced by any party in the case for Defendant?s use where Defendant failed without adequate explanation to maintain all such documents throughout the pendency of litigation due, perhaps, to changes in ownership and legal representation and where Plaintiffs? compilation of such information was work product, but ordered Plaintiff to produce from its database any specifically identified documents at Defendant?s cost

Electronic Data Involved: Contents of Plaintiffs’ discovery database (i.e., the collection of discovery produced by any party during the litigation)

S.E.C. v. Blackburn, No. 15-2451-CJB-SS, 2015 WL 10911438 (E.D. La. Oct. 26, 2015)

Dec 01 2015

Key Insight: No waiver of privilege resulting from inadvertent production (as a result of legal assistant?s accidental attachment of the wrong email folder when preparing initial disclosures) where steps to prevent disclosure were reasonable, including custodian?s specific identification of privileged material and trial attorney?s review of all non-privileged docs to be produced and where trial attorney immediately addressed inadvertent disclosure upon her discovery of it and return to her office

Electronic Data Involved: Email

Fid. Nat?l Title Ins. Co. v. Captiva Lake Invs., L.L.C., No. 4:10?CV?1890 (CEJ), 2015 WL 94560 (E.D. Mo. Jan. 7, 2015)

Dec 01 2015

Key Insight: Where inspection by court-appointed specialist revealed that plaintiff deleted emails, failed to institute a litigation hold, and delayed completing a comprehensive search of its electronic files, events which defendant and the court would not have known about but for the inspection, the court said plaintiff was subject to sanctions for failing to secure relevant emails and for prejudicial delay in production of discoverable material and that the court would instruct jurors that they may, but are not required to, assume the contents of deleted emails would have been adverse to the plaintiff, but the court would also allow for plaintiff to put on rebuttal evidence showing ?an innocent explanation of its conduct.? Additionally, the court ordered plaintiff to pay one-half of the reasonable costs of the inspection and to pay defendant?s reasonable attorneys? fees associated with bringing the sanctions motion.

Nature of Case: Insurance Coverage Dispute

Electronic Data Involved: ESI, database contents

Wal-Mart Stores, Inc. v. Ind. Elec. Workers Pension Trust Fund IBEW, 95 A.3d 1264 (Del. 2014)

Dec 01 2014

Key Insight: Delaware Supreme Court affirmed rulings of Court of Chancery in all respects, finding no error in setting the range of dates for production, requiring Wal-Mart to produce officer-level documents, requiring Wal-Mart to collect and search data from disaster recovery backup tapes for two additional custodians where Wal-Mart had voluntarily collected disaster tape recovery data for nine other custodians, and invoking the exception articulated in Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), to find that IBEW was entitled to documents protected by attorney-client privilege and work product protection in Section 220 litigation

Nature of Case: Pursuant to title 8, section 220 of the Delaware Code, shareholder brought action against corporation for production of documents related to alleged bribery scandal

Electronic Data Involved: Disaster recovery tapes for certain records custodians and documents related to company’s compliance with Foreign Corrupt Practices Act

Bombardier Recreational Prods. Inc. v. Arctic Car, Inc., No. 12-cv-2706 (MJD/LIB), 2014 WL 10714011 (D. Minn. Dec. 5, 2014)

Dec 01 2014

Key Insight: Addressing a myriad of motions, court declined to compel Defendant?s production of irrelevant ESI hit upon by agreed-upon search terms reasoning that the rules permit and even encourage relevancy screening ?in an effort to avoid large, largely nonresponsive documents dumps mean to obscure and cloak relevant documents? and that Plaintiff failed to establish that Defendant had withheld relevant materials or agreed to the production of all search hits; court declined to compel Defendant?s production of a 30(b)(6)(witness to provide ?discovery on discovery? reasoning that Plaintiff failed to demonstrate that the information sought was ?relevant to – or may lead to the discovery of information relevant to – any claim or defense at issue in the present case? and that the request ?treads dangerously close to encroaching on attorney work product privilege?

Nature of Case: Patent infringement

Electronic Data Involved: ESI search hits, “discovery on discovery”

AKH Co., Inc. v. Universal Underwriters Ins. Co., No. 13-2003-JAR-KGG, 2014 WL 2760860 (D. Kan. June 18, 2014)

Dec 01 2014

Key Insight: Where plaintiff requested that documents be produced in native format but defendant produced documents in both hard copy format and in a few very large PDF files, court found that defendant had adequately explained why the documents were not produced in their native format (proprietary nature of certain software used by defendant, defendant’s right to withhold privileged information, need to limit production of irrelevant information regarding unrelated policyholders, the added costs of re-producing information already submitted to plaintiff in converted PDF format), and ruled that, absent a need for metadata as to a particular document, it would not require defendant to re-produce the information

Nature of Case: Insurance coverage and settlement of trademark dispute

Electronic Data Involved: ESI

In re Yasmin & Yaz (Drospirenone) Mkg., Sales Practices & Prods. Liab. Litig., No. 3:09-md-02100-DRH-PMF, MDL No. 2100, 2014 WL 4961490 (S.D. Ill. Oct. 3, 2014)

Dec 01 2014

Key Insight: Court applied Rule 502 to conclude that disclosure of privileged slide presentations was inadvertent and did not waive attorney-client privilege; court ordered plaintiffs to return presentations and all copies to defendants and destroy all work product reflecting content from presentations, and directed clerk of court to strike from the court?s record certain exhibits containing references to the presentations

Nature of Case: 32 class actions relating to at least one of the drospirenone-containing oral contraceptives Yaz and Yasmin

Electronic Data Involved: Presentation prepared by defendants’ in-house counsel to convey legal advice to corporate employees and other presentations in which another employee conveyed the legal advice from the in-house counsel presentation to other corporate employees

Fleming v. Escort, Inc., No. 1:12-CV-066-BLW, 2014 WL 4853033 (D. Idaho Sep. 29, 2014)

Dec 01 2014

Key Insight: Where allegations covered events occurring over past 15 years and defendant produced almost no email in response to 65 document requests and 12 interrogatories, and despite general claim of privilege defendant did not provide a privilege log, court granted plaintiff’s motion and ordered defendant to answer three questions to allow plaintiff and court to evaluate defendant’s claim that it had produced everything: 1) What search terms did you use? 2) What computers or repositories did you search within? and 3) What was the time frame for your search? If questions were not answered fully and completely in 10 days, plaintiff would be allowed to file a new motion for sanctions

Nature of Case: Patent infringement

Electronic Data Involved: Email

Siani v. State Univ. of New York at Farmingdale, No. 2:09-CV-0407 (JFB) (WDW), 2014 WL 1260718 (E.D.N.Y. Mar. 28, 2014)

Dec 01 2014

Key Insight: Court denied motion for spoliation sanctions based on defendant campus counsel?s deletion of emails, because defendants produced emails from other custodians who did not delete them, and plaintiff failed to show that other deleted emails were relevant to the action and favorable to him; counsel?s deletion of email was not done in bad faith, but was instead part of his normal practice, he placed a litigation hold on the actual decisionmakers but did not include himself because he had a limited, non-decisive role, and, as an attorney, considered his own communications to be privileged and work product and any email not covered by these doctrines would be preserved by the parties subject to the litigation hold, making his own preservation redundant; court further denied plaintiff?s motion to compel production of emails withheld on the basis of privilege after conducting an in camera review and finding defendants? objections to be well-taken

Nature of Case: Age Discrimination in Employment Act claims

Electronic Data Involved: Email

Tag:Privilege or Work Product Protections