Privilege or Work Product Protections – Page 25

Mancini v. Ins. Corp. of N.Y., 2009 WL 1765295 (S.D. Cal. June 18, 2009)

Dec 01 2009

Key Insight: Where plaintiffs responded to defendants? requests for production by producing 73 CDs containing the entire universe of documents from an underlying litigation, court held that plaintiffs ?cannot fulfill their discovery obligation?without referencing which specific documents were responsive to which specific request? and ordered plaintiffs to provide defendants with a list of documents responsive to each request

Nature of Case: Breach of insurance contract, failure to indemnify

Electronic Data Involved: ESI

Infor Global Solutions (MI), Inc. v. St. Paul Fire & Marine Ins. Co., 2009 WL 2390174 (N.D. Cal. Aug. 3, 2009)

Dec 01 2009

Key Insight: Where out of ?an apparent concern about the court imposed deadline,? plaintiff produced electronic documents without review because of technical difficulties opening certain files and emails and where plaintiff informed no one of the difficulties, sought no extension from the court for production, and did not qualify the production with any ?clawback? notice, court found that plaintiff had waived privilege and granted defendant?s motion to compel

Nature of Case: Insurance

Electronic Data Involved: Privileged ESI

David v. Signal Int. LLC, 2009 WL 5215326 (E.D. La. Dec. 28, 2009)

Dec 01 2009

Key Insight: Where pro se defendant failed to assert the attorney client privilege when such information was sought and ?selectively disclosed? such information despite warnings from his former counsel, court found defendant had waived the attorney-client privilege as to communications with counsel; addressing defendant?s argument that his disclosures were ?mistakes? (and thus inadvertently produced) court noted defendant?s failure to seek the return of the confidential communications, his lack of effort to ?rectify or withdraw? any of his deposition disclosures, and that the disclosures occurred following warning from counsel and therefore found that ?any argument?that he inadvertently disclosed confidential communications?lacks merit.?

Nature of Case: Class action

Electronic Data Involved: Privileged communications

Hope for Families & Cmty. Servs., Inc. v. Warren, 2009 WL 1066525 (M.D. Ala. Apr. 21, 2009)

Dec 01 2009

Key Insight: Court found emails withheld by non-party independent contractor were protected by attorney-client privilege (and work product in some cases) where independent contractor acted as representative of plaintiff for purpose of securing bingo license from the county and was authorized to communicate with counsel on plaintiff?s behalf, among other things, and where the subject communications satisfied the five-prong test borrowed from the ?corporate employee context? requiring that the communication was made for the purpose of securing legal advice for the corporation, at the direction of the corporation, that the subject of the communication was within the scope of the independent contractor?s duties, and that the communication was not disseminated beyond persons needing to know its contents; court found common interest doctrine applicable where non-party and plaintiff?s interests were identical pursuant to the terms of their consulting contract and the nature of their relationship

Dawe v. Corrections, USA, 2009 WL 3233883 (E.D. Colo. Oct. 1, 2009)

Dec 01 2009

Key Insight: Citing a ?pervasive? level of ?distrust that permeates this litigation? and plaintiff?s ?adamant refusal to permit even a limited inspection? and citing defendants? representations that additional, relevant information remained on the laptop and that the laptop had been ?forensically cleaned,? court granted defendants? motion to compel inspection of plaintiff?s laptop but ordered defendants to bear the cost – if inspection revealed relevant information was withheld, court invited a motion to shift some or all of the costs to plaintiff(s)

Electronic Data Involved: ESI, laptop

Clarke v. J.P. Morgan Chase & Co., 2009 WL 1838995 (S.D.N.Y. June 22, 2009)

Dec 01 2009

Key Insight: Court upheld prior determination that email withheld as protected by attorney-client privilege should be produced where review of the email and affidavits of defendant?s employees showed that ?rather than having been asked to make a recommendation, in-house counsel had been charged with making a corporate decision as to whether certain jobs would be reclassified? and that the email informed the recipients of that decision and did not provide legal advice

Nature of Case: Class action alleging violations of Fair Labor Standards Act

Electronic Data Involved: Email

Laethem Equip. Co. v. Deere & Co., 2009 WL 2777334 (E.D. Mich. Aug. 27, 2009)

Dec 01 2009

Key Insight: Court ruled on defendant?s objections to magistrate?s order, including, among other things, addressing issues of privilege pursuant to FRE 502(b) and analyzing the propriety of claims of privilege as to certain categories of documents, including those stored on a server that was available to all employees; court also ordered each party to bear the costs of production for the documents it requested (a direct contradiction to the presumption that the responding party must bear the expense of compliance) where such an order would ?curb [the] bilateral tendency? to broaden discovery demands to include both important and marginal information ?whose primary utility would be found in the burden and cost of production to the other side?

Nature of Case: Breach of contract, statutory violations, tortious interference

Electronic Data Involved: ESI

Gregorio v. Yellow Transp., Inc., 2009 WL 3756493 (N.D. Ill. Nov. 5, 2009)

Dec 01 2009

Key Insight: Court found no attorney-client privilege protection preventing production of employee’s email write up of an accident where Illinois law makes clear that ?employees who supply only the factual bases upon which the decisionmakers predicate their opinions? are not within the protected ?control group? pursuant to the relevant legal test and the communication was therefore not privileged; court also found no protection in the work product doctrine where the write up was generated in the usual course of business and was not of a ?legal nature? and ?primarily concerned with legal assistance?

Electronic Data Involved: Employee’s email description of accident

Boyer v. Gildea, 2009 WL 230646 (N.D. Ind. Jan. 29, 2009)

Dec 01 2009

Key Insight: Finding emails between trustee?s former and current counsel and an email between current counsel and a fact witness subject to protection from disclosure under the work production doctrine and noting defendant?s failure to assert substantial need or inability to obtain equivalent materials by other means, court denied defendant?s motion to compel production of the emails at issue

Nature of Case: Adversary proceeding alleging statutory violations by entering into agreement to control price of auction assets

Electronic Data Involved: Emails

Fuller v. Interview, Inc., 2009 WL 3241542 (S.D.N.Y. Sept. 30, 2009)

Dec 01 2009

Key Insight: Court found no waiver of privilege where production was inadvertent, where reasonable steps were taken to protect privileged materials, where the volume of inadvertently produced material was very small (portions of a few pages out of 34,000 pages produced), and where defendants acted quickly to assert the privilege after discovering the inadvertent production

Nature of Case: Termination in violation of Family Medical Leave Act

Electronic Data Involved: Portions of privileged emails

Tag:Privilege or Work Product Protections