Privilege or Work Product Protections – Page 39

In re Atlantic Int’l Mortgage Co., 2006 WL 2848575 (Bankr. M.D. Fla. Aug. 2, 2006)

Dec 01 2006

Key Insight: Court rejected trustee’s request for entry of default judgment based upon based on law firm’s failure to retain and timely produce relevant documents and electronically-stored information, but found that monetary sanctions were appropriate; trustee awarded his reasonable attorneys’ fees and costs incurred in pursuing all discovery in the adversary proceeding

Nature of Case: Adversary proceeding in bankruptcy court

Electronic Data Involved: Backup tapes

In re Atlantic Int’l Mortg. Co., 352 B.R. 503 (Aug. 2, 2006)

Dec 01 2006

Key Insight: Although it concluded that default judgment against former general counsel was not warranted, court found that discovery misconduct of former general counsel and its attorneys bordered on obstruction and awarded trustee its reasonable attorneys fees and costs in pursuing all discovery in the proceeding

Nature of Case: Bankruptcy trustee sued debtor’s former general counsel for breach of fiduciary duty and related claims

Electronic Data Involved: Computer systems and electronic records

Dehart v. Wal-Mart Stores, East, L.P., 2006 WL 83406 (W.D. Va. Jan. 9, 2006)

Dec 01 2006

Key Insight: Computer generated diary of investigation of incident by defendant’s adjusting company constituted work product and was protected from discovery

Nature of Case: Personal injury

Electronic Data Involved: Computer generated diary

Malletier v. Dooney & Bourke, Inc., 2006 WL 3476735 (S.D.N.Y. Nov. 30, 2006)

Dec 01 2006

Key Insight: Where plaintiff provided only partial production and made false representations to court about non-existence of responsive documents, court imposed monetary sanctions and would deem as true certain contentions

Nature of Case: Trademark infringement

Electronic Data Involved: Email concerning customer communications

Ryan v. Staten Island Univ. Hosp., 2006 WL 3497875 (E.D.N.Y. Dec. 5, 2006)

Dec 01 2006

Key Insight: Where defendant failed to timely disclose that it was withholding certain information from production and defense counsel made representations several times to plaintiff and to court that she had provided full and complete discovery, court: (1) granted motion to compel production of database in hard copy and in electronic form with specific redactions noted and included in revised privilege log; (2) extended discovery cut-off date; and (3) awarded sanctions solely against defense counsel (and not client) for costs of motion

Nature of Case: Fraud and medical malpractice

Electronic Data Involved: Database

Chavannes v. Protective Life Ins. Co., 232 F.R.D. 698 (S.D. Fla. 2006)

Dec 01 2006

Key Insight: Where plaintiff had originally asserted work product protection regarding videotape recording of insured’s funeral, but failed to adequately explain the circumstances which led to his statements that the video existed or the circumstances surrounding his claimed discovery that no such video existed, court ordered plaintiff to produce video or explain in detail any reasons for non-production

Nature of Case: Beneficiary sued insurer to recover death benefit

Electronic Data Involved: Videotape recording of funeral

Fed. Trade Comm’n v. Ameridebt, Inc., 2006 WL 618563 (N.D. Cal. Mar. 13, 2006)

Dec 01 2006

Key Insight: Magistrate denied third party’s motion to stay discovery order requiring him to give permission to Google, Inc. to produce emails from his gmail account, where third party failed to establish any likelihood of success on appeal or that the balance of hardships tipped in his favor; court was “skeptical” of third party’s unsubstantiated arguments that the volume of email was large and that attorney review would be unduly costly, and noted that “email could likely be screened efficiently through the use of electronic search terms that the parties agreed upon”

Nature of Case: Allegations of consumer fraud

Electronic Data Involved: Email in third party’s Google email account

Balboa Threadworks, Inc. v. Stucky, 2006 WL 763668 (D. Kan. Mar. 24, 2006)

Dec 01 2006

Key Insight: During initial case management conferences, court ordered mirror imaging of all of defendants’ computers and peripheral equipment, e.g., ZIP drives, to be done at plaintiffs’ expense, and ordered parties to meet and confer on appropriate search protocol that would address the issue of protection of attorney client privilege and non-business related personal information which may be located on the computer hard drives

Nature of Case: Copyright infringement, fraud and civil conspiracy

Electronic Data Involved: All defendants’ computers and peripheral equipment

Etzion v. Etzion, 796 N.Y.S.2d 844 (N.Y. Sup. Ct. 2005)

Dec 01 2005

Key Insight: Where husband consented to discovery of financial matters but resisted plaintiff’s broad request for access to all documents on all computers, court set out detailed protocol for the copying and review of computer data with oversight by court-appointed referee

Nature of Case: Divorce proceeding

Electronic Data Involved: Data on hard drives

United States v. Mallinckrodt, Inc., 227 F.R.D. 295 (E.D. Mo. 2005)

Dec 01 2005

Key Insight: Inadvertent disclosure of government’s privileged litigation report by copying report onto CD-ROMs produced to over 50 defense attorneys did not effect waiver of attorney-client privilege where (1) government took reasonable precautions to prevent inadvertent disclosure by segregating privileged documents in extensive privilege review of more than 61,000 pages, (2) only one privileged document was inadvertently produced, (3) government acted promptly by alerting all counsel of inadvertent production within one month after learning of the disclosure, and (4) the interest of justice favored relieving the government of its error

Nature of Case: Environmental litigation

Electronic Data Involved: CD-ROM

Tag:Privilege or Work Product Protections