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 Nov. 30, 2005) (Unpublished)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

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

Bowles v. Nat’l Ass’n of Home Builders, 2004 WL 2203831 (D.D.C. Sept. 30, 2004)

Dec 01 2004

Key Insight: Court ruled that defendant effected waiver of its attorney-client and work product privileges as to all documents on the same subject matter as the privileged documents it gave to plaintiff when she was president, since defendant’s failure to take any legal action to assert its privilege or otherwise to recover the documents for more than a year did not constitute “reasonable steps to reclaim the protected material.” Parties ordered to submit further briefing on the scope of the subject matter waiver.

Nature of Case: Former president of association sued for wrongful termination

Electronic Data Involved: Privileged emails

Byrne v. Byrne, 650 N.Y.S.2d 499 (1996)

Dec 01 2004

Key Insight: Wife’s acts of removing laptop from family home and delivering it to her attorney for safekeeping were not wrongful; court established protocol for inspection and production

Nature of Case: Divorce proceeding

Electronic Data Involved: Financial data stored on laptop provided by husband’s employer

Ciba-Geigy Corp. v. Sandoz, Ltd., 916 F. Supp. 404 (D.N.J. 1995)

Dec 01 2004

Key Insight: Production of documents from litigation database without first conducting privilege review constituted inexcusable neglect and waived attorney-client privilege; inadvertent disclosure clause in governing protective order did not apply

Nature of Case: Environmental litigation

Electronic Data Involved: Memorandum selected from litigation database

Collaboration Props., Inc. v. Polycom, Inc., 224 F.R.D. 473 (N.D. Cal. 2004)

Dec 01 2004

Key Insight: To enable parties to discuss more meaningfully the proper scope of any privilege and correlative redactions, court ordered producing party to show requesting party’s counsel non-redacted emails at meet and confer, reserving producing party’s right to assert any applicable privilege; court noted that process was especially appropriate since producing party had not argued that disclosure would result in unfair advantage to requesting party, but that material was irrelevant and it feared waiving privilege as to future third parties

Nature of Case: Patent infringement

Electronic Data Involved: Privileged emails

Tag:Privilege or Work Product Protections