Privilege or Work Product Protections – Page 21

Pensacola Firefighters? Relief Pension Fund Board of Trustees v. Merril Lynch Pierce Fenner & Smith, Inc., No. 3:09cv53/MCR/MD, 2011 WL 3512180 (N.D. Fla. July 7, 2011)

Dec 01 2011

Key Insight: Finding good cause, the court granted intervenors? motion for a protective order prohibiting plaintiff?s discovery of intervenors? privileged emails sent over defendant?s email servers (defendant was found to have waived its privilege as to such communications) where the intervenors were employees of defendant during the pendency of government investigations; had a joint defense agreement with defendant allowing communication for purposes of furthering their defense against the investigations; and held an objectively reasonable belief that their emails would remain confidential, in spite of defendant?s internal email policies warning that they were not, in light of defendant?s general counsel?s endorsement of and participation in such joint defense discussions

Electronic Data Involved: Intervenors’ privileged emails sent over defendant’s servers

In re Royce Homes, LP, No. 09-32467-H4-7, 2011 WL 873428 (Bankr. S.D. Tex. Mar. 11, 2011)

Dec 01 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

Benefitvision, Inc. v. Gentiva Health Servs., Inc., No. CV 09-473(DRH)(AKT), 2011 WL 3796324 (E.D.N.Y. May 23, 2011)

Dec 01 2011

Key Insight: Court ordered that non-privileged portions of email chains be produced with privileged portions redacted and properly logged; court addressed formatting and substantive issues with defendants? privilege log and ordered defendants to edit their log to remove the unnecessary data that was exported into the log from the documents database (e.g., dashes, arrows, etc.) to facilitate ease of use and to amend their descriptions to provide information sufficient to analyze the viability of the privilege claim

Electronic Data Involved: Emails

In re Oil Spill by the Oil Rig ?Deepwater Horizon? in the Gulf of Mexico on April 20, 2010, No. MDL 2179, 2011 WL 1193030 (E.D. La. Mar. 28, 2011)

Dec 01 2011

Key Insight: Court rejected claim of marital privilege and a request for the return or destruction of emails allegedly protected from disclosure where petitioner and wife communicated through company?s email accounts and where there was no reasonable expectation of privacy in light of company policies which ?clearly demonstrate? that employees? communications are not private, that they may be monitored or accessed by the employer, and that they are subject to production by a subpoena

Nature of Case: Claims arising from oil spill

Electronic Data Involved: Emails

Alers v. City of Philadelphia, No. 08-4745, 2011 WL 6000602 (E.D. Pa. Nov. 29, 2011)

Dec 01 2011

Key Insight: Where defendants inadvertently produced a privileged memorandum as part of a multi-page document amid more than 2000 pages of document production and where they requested return of the document four days after learning of its disclosure at a deposition (where there was no objection made), the court found that privilege was not waived (despite defendants? choice to attach the memorandum to a publically available motion)

Electronic Data Involved: Inadvertently produced memorandum

United States v. Hamilton, No. 2:11CR13-HEH, 2011 WL 1366481 (E.D. Va. Apr. 11, 2011)

Dec 01 2011

Key Insight: Employer?s policy notifying employees that there should be no expectation of privacy as to information ?sent, received, accessed, or stored? on work computer served to negate reasonable expectation of privacy for purposes of fourth amendment and to negate marital privilege as to emails stored on employee?s computer, even where those emails were sent at a time when no use policy was in place

Nature of Case: Criminal indictment

Electronic Data Involved: Email

Int?l Med. Group, Inc. v. Walker, No. 1:08-cv-923-JMS-TAB, 2011 WL 1752101 (S.D. Ind. May 9, 2011)

Dec 01 2011

Key Insight: Where relevant evidence found on defendants? hard drive ?challenge[d]? defendants? prior assertions that they had not retained copies of certain communications and defendant Walker?s ?self characterization as a peripheral observer?, the court concluded that Plaintiff had made a prima facie showing of fraud and that defendants therefore waived their attorney-client privilege as to communications with counsel regarding: ?preservation, destruction, or location of documents or discussion of discovery obligations?

Nature of Case: Conspiracy to defame and tortuously interfere with business relationships

Electronic Data Involved: ESI

Cannata v. Wyndham Worldwide Corp., No. 2:1-cv-00068-PMP-VCF, 2011 WL 5598306 (D. Nev. Nov. 17, 2011)

Dec 01 2011

Key Insight: Reasoning that the litigation holds were not discoverable but that the details surrounding them were, court ordered defendant to produce ?information surrounding the litigation hold? including when defendants learned of claims, when and to whom litigation hold instructions were sent, what categories of information were identified for preservation , etc.

Electronic Data Involved: Litigation holds

Morris v Scenera Research LLC, No. 09 CVS 19678, 2011 WL 3808544 (N.C. Super. Ct. Aug. 26, 2011)

Dec 01 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

Pac. Coast Steel v. Leany, No. 2:09-cv-2190-KJD-PAL, 2011 WL 4704217 (D. Nev. Oct. 4, 2011)

Dec 01 2011

Key Insight: [This amended order corrects an omission to the original order, Docket # 335] Where plaintiffs ?simply overlooked? and thus inadvertently produced 3 privileged documents along with 2.3 million other pages, despite conducting ?multiple? privilege reviews and where plaintiff immediately objected to the use of such documents upon their presentation at deposition and thereafter sought their return before the court, the court found that privilege was not waived

Electronic Data Involved: ESI

Tag:Privilege or Work Product Protections