Privilege or Work Product Protections – Page 28

Preferred Care Partners Holding Corp. v. Humana, Inc., 2009 WL 982449 (S.D. Fla. Apr. 9, 2009)

Dec 01 2009

Key Insight: Court declined to find plaintiffs had waived privilege as to three emails where the emails were inadvertently produced (amongst a supplemental production of 10,000 documents), where plaintiffs? counsel took reasonable steps to prevent their production by conducting a pre-production privilege review and where two of the emails had been marked as privileged, and where plaintiff took reasonable steps to rectify the error by requesting the return of each email shortly after discovering its production; court found waiver as to one email where the details of the email where revealed at hearing and in a declaration and thus, the privilege was voluntarily waived

Nature of Case: Claims arising from breach of confidentiality agreement

Electronic Data Involved: Emails

Pulse Eng?g. Inc. v. Mascon, Inc., 2009 WL 3234177 (S.D. Cal. Oct. 2, 2009)

Dec 01 2009

Key Insight: Court denied motion to compel production of redacted portions of emails where the emails were prepared in anticipation of litigation and where dissemination to third party with common legal interest did not constitute waiver pursuant to the Common Interest Doctrine (commonality of interested existed where third party was responsible for manufacturing and supplying the allegedly infringing filter)

Nature of Case: Patent infringement

Electronic Data Involved: Portions of privileged emails

Kandel v. Brother Int?l Corp., 2009 WL 5454888 (C.D. Cal. Dec. 15, 2009)

Dec 01 2009

Key Insight: Where defendants presented evidence that 110 privileged documents were produced despite extensive preventative measures, including key word searching and manual review, and where defense counsel took immediate action to identify all privileged materials that had been produced and to request plaintiff return, sequester, or destroy the documents pursuant to the parties? clawback agreement, court found that ?defendants ha[d] shown their production?was inadvertent within the meaning of?the protective order? and denied plaintiff?s motion for an order declaring 28 documents produced by defendants to be not privileged

Nature of Case: Class action

Electronic Data Involved: Privileged communications

Ayers Oil Co. v. Am. Bus. Brokers, Inc., 2009 WL 4725297 (E.D. Mo. Dec. 2, 2009)

Dec 01 2009

Key Insight: Where a party to the litigation forwarded an email from his attorney to a third party, the court ruled that the attorney-client privilege had been waived because there was no shared legal interest between the litigant and the third party and thus the common interest doctrine did not apply but held that the protection provided by the work product doctrine had not been waived where the email was forwarded to ?a nonadversary third party? and where there was no basis for finding it likely that the third party would not keep the email confidential

Electronic Data Involved: Privileged email

AHF Cmty. Dev., LLC v. City of Dallas, 2009 WL 348190 (N.D. Tex. Feb. 12, 2009)

Dec 01 2009

Key Insight: Where city inadvertently produced privileged documents due to its conversion to new software but then allowed its witness to testify regarding those documents at deposition without objection, court held privilege had been waived and declined to compel the documents? return

Nature of Case: Violations of Fair Housing Act

Electronic Data Involved: Email

Richmond v. Coastal Bend Coll. Dist., 2009 WL 1940034 (S.D. Tex. July 2, 2009)

Dec 01 2009

Key Insight: Court granted defendants? motion for protective order preventing the production of emails in sealed court file where plaintiffs failed to establish an exception to the Public Information Act requiring their disclosure, where plaintiffs failed to establish defendants? waiver of privilege, and where plaintiffs failed to establish the applicability of the crime fraud exception; court granted plaintiffs? motion to compel certain information, including personal emails, and ordered defendants to submit affidavits indicating their lack of personal accounts, if appropriate, and for defendants to produce emails ?of a personal nature to the court under seal? for a determination of relevance

Nature of Case: Employment discrimination

Electronic Data Involved: Emails

Great Am. Ins. Co. v. Liberty Surplus Ins. Co., 2009 WL 3052680 (N.D. Cal. Sept. 18, 2009)

Dec 01 2009

Key Insight: Where a claims specialist for defendant forwarded counsel?s coverage opinion to third party, copied a claims manager for her company in the communication, discussed the opinion with the third party, and made no claim of privilege until the document was utilized in plaintiff?s motion for summary judgment, court found that the production was not inadvertent and found that the voluntary communication of the coverage opinion waived defendant?s claim of attorney-client privilege and work product; court?s opinion specifically rejected defendant?s reliance on Fed. R. Civ. P. 26(b)(5)(B)

Nature of Case: Insurance litigation regarding coverage obligations

Electronic Data Involved: Email forwarding counsel’s coverage opinion

Silverstein v. Fed. Bureau of Prisons, 2009 WL 4949959 (D. Colo. Dec. 14, 2009)

Dec 01 2009

Key Insight: Defendants waived claims of privilege as to specific memorandum where, despite initially identifying the memorandum as privileged and placing it on the privilege log, defendants subsequently produced the memorandum and, upon realizing their mistake, failed to properly and timely re-assert the privilege or to take reasonable steps ?rectify the erroneous disclosure?; waiver was intentional where defendant failed for nearly 11 months to clarify the status of the document following its production despite a ready ability to do so and, where plaintiff was prejudiced as a result, court found ?fairness dictat[ed]? that plaintiff be allowed to proceed with discovery and that ?to the extent questions and documents ?concern the same subject matter? as that disclosed in the [memorandum], ?they ought in fairness to be considered together.??

Nature of Case: Constitutional claims

Electronic Data Involved: Privilege memorandum

Lawson v. Sun Microsystems, Inc., 2009 WL 499014 (S.D. Ind. Feb. 26, 2009)

Dec 01 2009

Key Insight: Where plaintiff denied wrongdoing resulting from its efforts to access password-protected files containing attorney-client material produced to plaintiff in discovery and relied in part on counsel?s approval of those actions, court ordered emails between plaintiff and counsel produced based on plaintiff?s reliance on those discussions and the ?need to unearth what actually transpired?; court indicated belief that intrusion into the attorney-client privilege was minimized by court?s en camera review of the emails before rendering its decision

Nature of Case: Action for unpaid commission

Callan v. Christian Audigier, Inc., 263 F.R.D. 564(C.D. Cal. 2009)

Dec 01 2009

Key Insight: Where defendants sought to compel plaintiff?s compliance with a clawback provision intended to control the return of inadvertently produced documents but failed to establish the nature of the privilege claimed or the precautions taken to prevent disclosure, court ruled that defendants had failed to establish that the production of any document was ?inadvertent? and denied defendants? motion to compel

Electronic Data Involved: ESI

Tag:Privilege or Work Product Protections