Privilege or Work Product Protections – Page 40

Banks v. United States, 2005 WL 974723 (W.D. Wash. Mar. 22, 2005)

Dec 01 2005

Key Insight: Email between paralegal for U.S. Attorney’s Office and medical expert constituted work product, and inadvertent disclosure of email did not waive work product immunity under Ninth Circuit’s five-factor test, which balances: (1) the reasonableness of precautions to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the overriding issue of fairness

Nature of Case: Medical malpractice

Electronic Data Involved: Email

Barton v. U.S. Dist. Court for Cent. Dist. of Cal., 410 F.3d 1104 (9th Cir. 2005)

Dec 01 2005

Key Insight: Ninth circuit granted writ of mandamus reversing district court’s order compelling plaintiffs to produce their answers to law firm’s internet questionnaire; although questionnaire disclaimed any formation of an attorney-client relationship, it did not disclaim confidentiality, and, under California law, prospective clients’ communications with a view to obtaining legal services were covered by the attorney-client privilege

Nature of Case: Users of antidepressant sued manufacturer of drug

Electronic Data Involved: Law firm’s questionnaires regarding drug which were completed and submitted to the law firm on the internet

Steadfast Ins. Co. v. Purdue Frederick Co., 2005 WL 3511085 (Conn. Super. Ct. Nov. 30, 2005) (Unpublished)

Dec 01 2005

Key Insight: Deciding there should be a presumption in favor of finding inadvertence, court denied plaintiff’s motion to compel production of privileged documents “recalled” by defendant under stipulated inadvertent production provision; court further advised that (1) production of documents without any privilege review whatsoever is not an inadvertent, but rather a purposeful, act unless the parties had an agreement otherwise; and (2) the purpose of the parties’ inadvertent production provision was not to allow the producing party to consciously change its mind post-production about whether or not to claim the privilege

Nature of Case: Insurance coverage

Electronic Data Involved: Privileged email

Jinks-Umstead v. England, 232 F.R.D. 142 (D.D.C. 2005)

Dec 01 2005

Key Insight: Court denied plaintiff’s motion to reject defendant’s attorney-client privilege and work product claims, finding that crime/fraud exception did not apply, that defendant had not waived privilege, and that plaintiff had not demonstrated a substantial need for the material; court also noted that defendant had previously been sanctioned for the discovery conduct complained of and that it would be inappropriate to sanction defendant again for the very same conduct

Nature of Case: Employment discrimination

Electronic Data Involved: Drafts of discovery responses and email claimed to be privileged

Synthes Spine Co., L.P. v. Walden, 232 F.R.D. 460 (E.D. Pa. 2005)

Dec 01 2005

Key Insight: Court ordered plaintiff to produce all materials that plaintiff’s counsel furnished to plaintiff’s testifying expert, regardless of privilege or claimed work product protection, including emails, summaries, spreadsheets and draft expert reports

Nature of Case: Employer sought to enforce restrictive covenants against former employees

Electronic Data Involved: Emails, spreadsheets, draft expert reports

Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503 (S.D. Cal. 2003)

Dec 01 2004

Key Insight: Emails exchanged between a narrow group of plaintiff corporate business’s non-attorney employees were protected from discovery by attorney-client privilege and work product doctrine; further, statements on plaintiff’s web site waived work product protection for affidavits described therein, but did not waive work product protection with respect to plaintiff’s recorded conversation with competitor’s former employees and email exchanges with them

Nature of Case: Copyright infringement and misappropriation of trade secrets

Electronic Data Involved: Email

Youle v. Ryan, 811 N.E.2d 1281 (Ill. App. Ct. 2004)

Dec 01 2004

Key Insight: Order compelling defendant surgeon to produce his surgical database, to include information related to all the cholecystectomy procedures defendant had ever performed (with the patient names redacted) was abuse of discretion; matter remanded with directions that the court examine the database contents in camera to determine relevance and privilege issues

Nature of Case: Medical malpractice

Electronic Data Involved: Surgical database maintained by defendant surgeon

In re Lernout & Hauspie Sec. Litig., 222 F.R.D. 29 (D. Mass. 2004)

Dec 01 2004

Key Insight: Finding that the production of privileged email was not inadvertent, court held that accounting firm waived attorney-client privilege as to disclosed email, and as to 15 other emails on same subject matter

Nature of Case: Securities class action

Electronic Data Involved: Email

Bovis Lend Lease, LMB, Inc. v. Seasons Contracting Corp., 2002 WL 31729693 (S.D.N.Y. Dec. 5, 2002)

Dec 01 2004

Key Insight: Various emails among claims handlers, supervisors, in-house counsel and outside counsel were protected from discovery by either attorney-client privilege, work product doctrine, or both; however, voluntary production of certain emails waived protections; inadvertent disclosure may waive protections if reasonable precautions were not taken to guard against inadvertent disclosure

Nature of Case: Insurance coverage

Electronic Data Involved: Email

In re Lowe’s Companies, Inc., 134 S.W.3d 876 (Tex. App. 2004)

Dec 01 2004

Key Insight: Trial court’s order requiring witness to bring with her a computer or have access at the time of her deposition to a computer capable of logging onto the database and capable of searching, sorting and printing the data on the computer as requested by plaintiff’s counsel in the deposition was overbroad and vacated; however, witness would be required to testify about database since defendant had failed to establish that database was a trade secret

Nature of Case: Personal injury from falling merchandise

Electronic Data Involved: Database re accidents and injuries occurring at Lowe’s stores

Tag:Privilege or Work Product Protections