Privilege or Work Product Protections – Page 36

Heartland Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 WL 2122438 (D. Kan. July 20, 2007)

Dec 01 2007

Key Insight: Court granted defendants’ motion for clarification and ruled that defendants would be permitted to conduct limited ex parte interviews with plaintiff’s former employee relating solely to particular database at issue, including the underlying functioning of the Advantx database and how Heartland, in particular, used that database and any custom-designed reports which Heartland may have developed; defendants were also free to ask former employee to operate the version of Heartland’s Advantx program and the Advantx database that Heartland produced in this case and were free to ask him to run searches using the program and to prepare any customized reports defendants may request from the database

Nature of Case: Antitrust and tortious interference litigation

Electronic Data Involved: Interviews with former employee re database used by plaintiff

Wachtel v. Guardian Life Ins., 2007 WL 1752036 (D.N.J. June 18, 2007) (Unpublished)

Dec 01 2007

Key Insight: Court found that plaintiff made a prima facie showing that crime-fraud exception to attorney-client privilege may apply with respect to the documents identified in Health Net’s privilege log, citing numerous instances of discovery misconduct including Health Net’s failure to disclose to the court during three years of discovery that emails older than 90 days were never searched when proper discovery requests sought historic information from a period more than 90 days earlier

Nature of Case: Class action relating to administration of health care plans

Electronic Data Involved: Email

Lockheed Martin Corp. v. L-3 Communications Corp., 2007 WL 2209250 (M.D. Fla. July 29, 2007)

Dec 01 2007

Key Insight: Court ordered plaintiff to produce certain documents related to forensic examinations of former employee’s computers, including electronic documents or portions thereof retrieved from the computers, and all related “fact” work product since substantial need had been demonstrated; court further ordered plaintiff’s IT employee to answer questions regarding forensic examinations at deposition, finding inadequate plaintiff’s proposal that witness respond to unanswered questions through an errata sheet since LMC’s counsel instructed witness not to testify on broad areas of inquiry and counsel was unable to fully develop lines of questioning

Nature of Case: Misappropriation of trade secrets

Electronic Data Involved: Results of forensic computer analysis

ABN Amro Mortgage Group, Inc. v. Promised Land Mortgage LLC, 2007 WL 101812 (S.D. Ind. Jan. 8, 2007)

Dec 01 2007

Key Insight: Court analyzed application of attorney/client privilege and work product protection to information entered into a database and printed in spreadsheet format, comparing database to a “file cabinet” with “drawers” and “file folders”; court ultimately ordered production of a master spreadsheet with several categories of information redacted

Nature of Case: Contract and tort claims arising from alleged mortgage fraud

Electronic Data Involved: Database, spreadsheets

Garcia v. Berkshire Life Ins. Co. of Am., 2007 WL 3407376 (D. Colo. Nov. 13, 2007)

Dec 01 2007

Key Insight: Finding that all emails on DVD appeared to constitute “crucial evidence” in the case, court ordered their production notwithstanding plaintiff’s claimed burden and expense to review them and even though some of them may prove to be irrelevant to the dispute; court rejected plaintiff’s counsel’s claim of technical incompetence, finding that once he was on notice of potential problems he was obligated to seek competent professional assistance to ascertain the truth about the contents of DVD

Nature of Case: Plaintiff alleged bad faith breach of insurance agreement

Electronic Data Involved: DVD containing email sent or received by plaintiff through University of Denver email account

Polycom, Inc. v. Codian Ltd., 2007 WL 194588 (E.D. Tex. Jan. 22, 2007)

Dec 01 2007

Key Insight: Court denied motion to compel production of defendants’ source code in native format to be maintained in confidence at Los Angeles office of plaintiffs’ counsel in light of security concerns and technical support issues raised by defendants, and since defendants had already produced an electronic version of the source code and plaintiffs’ consultants had been inspecting the code for several months at defense counsel’s Palo Alto office; court rejected plaintiff’s argument that current system intruded on plaintiff’s work product

Nature of Case: Patent infringement

Electronic Data Involved: Source code

Muro v. Target Corp., 2007 WL 3254463 (N.D. Ill. Nov. 2, 2007)

Dec 01 2007

Key Insight: District court upheld magistrate judge?s ruling that Target’s ?litigation hold? notices were subject to attorney-client privilege and work product protection since notices were communications of legal advice from corporate counsel to corporate employees regarding document preservation; however, court sustained objection to magistrate’s ruling that privilege log was inadequate for failing to separately itemize each individual email quoted in an email string, concluding that Rule 26(b)(5)(A) does not require separate itemization of each individual email quoted in an email string

Nature of Case: Putative class action alleging violations of Truth in Lending Act

Electronic Data Involved: Litigation hold notices; privileged email

G.D. v. Monarch Plastic Surgery, P.A., 2007 WL 201154 (D. Kan. Jan. 24, 2007)

Dec 01 2007

Key Insight: Court granted motion to compel defendants to produce the subject computer for inspection, appointed an expert to conduct the examination whose fees would be shared by the parties, and set out two distinct procedures for production of the computer ? one for reviewing the computer?s hardware, software, and operating system and one for reviewing information stored on the computer

Nature of Case: Plaintiffs claimed defendants wrongfully disclosed plaintiffs’ confidential medical information stored on a computer hard drive by placing the computer on the curb for trash disposal

Electronic Data Involved: Computer hard drive of subject computer

Adams Land & Cattle Co. v. Hartford Fire Ins. Co., 2007 WL 4522627 (D. Neb. Dec. 18, 2007)

Dec 01 2007

Key Insight: Where plaintiff?s counsel became aware of mistaken production of privileged email during June deposition but waited until September to contact defense counsel to explain the inadvertent disclosure and request that defendant destroy and agree not to use the email, court applied five-part test and found ?no overriding interest of justice that requires the Court to relieve plaintiff’s counsel of its production errors?

Nature of Case: Insurance coverage

Electronic Data Involved: Privileged email

Self v. Equilon Enters., LLC, 2007 WL 427964 (E.D. Mo. Feb. 2, 2007)

Dec 01 2007

Key Insight: In order issued after parties’ status hearing on production of electronic documents, court recounted history of discovery conferences and orders addressing defendants’ production, including court’s prior order directing defendants to produce all emails tagged by the search term “transfer price” whether deemed relevant or not after completing a privilege review, and concluded that, since plaintiffs had not shown that need for further electronic discovery outweighed burdens and costs of retrieving and producing such information, and had not shown that defendants were withholding or ?cherry picking? relevant emails, plaintiffs would bear the costs of all additional email searches, if any

Nature of Case: Breach of contract

Electronic Data Involved: Email

Tag:Privilege or Work Product Protections