Key Insight: Applying the Rowe balancing test, court denied producing party’s motion to require requesting party to pay costs associated with computerized privilege review estimated to cost $28,000-40,000
Nature of Case: Copyright infringement, misappropriation of trade secrets
Electronic Data Involved: 8 hard drives
Key Insight: Where defendant did not timely object to document requests and belated privilege log was inadequate, court determined that attorney-client privilege and work product protection had been waived and ordered production
Nature of Case: Insurance coverage
Electronic Data Involved: Insurer’s computerized “Z-note” file contents related to particular claim
Key Insight: Forwarding or copying email or other documents that are prepared by non-lawyers for business purposes to a lawyer does not transform such email or documents into work product
Nature of Case: Patent infringement
Electronic Data Involved: Email
Key Insight: DA’s application to compel witnesses to answer questions granted: attorney/client privilege did not preclude attorneys representing individuals connected to events surrounding homicide from answering questions about laptop that was instrumentality of crime
Nature of Case: Grand jury proceedings investigating homicide
Electronic Data Involved: Laptop
Key Insight: Finding that work product protection did not apply to contested emails, court ordered their production
Nature of Case: Disabled individual alleged violations of ADA
Electronic Data Involved: Email between plaintiff and third party
Key Insight: Granting plaintiff’s’ motion to compel production of computerized images of employment records which were created to facilitate review of the documents by geographically-dispersed defense counsel, court held that images did not constitute attorney work product since images did not contain mental impressions or legal theories and would not give plaintiffs insight into defense strategy or opinions; plaintiffs to pay only nominal copying costs and not portion of $250,000 imaging cost incurred by defendant
Nature of Case: Race discrimination
Electronic Data Involved: Computerized images of employment records
Key Insight: Where defendant voluntarily divulged a privileged email communication at unemployment hearing and in response to discovery request, defendant waived any privilege with respect to the communication and to testimony and documents regarding the same subject matter; trial court erred in granting the defendant’s motion for return of the communication and for protective order, and in denying plaintiff’s motion to compel
Nature of Case: Wrongful discharge
Electronic Data Involved: Email
Key Insight: Federal database containing firearms tracing and licensing data which was maintained by Bureau of Alcohol, Tobacco & Firearms was relevant to plaintiffs’ claims, and was not protected by any law enforcement privilege when produced subject to an order of confidentiality; motion to quash subpoena denied
Nature of Case: Negligence action against manufacturers, distributors, and retailers of weapon used in robbery
Electronic Data Involved: Database maintained by Bureau of Alcohol, Tobacco, Firearms and Explosives
Key Insight: Granting motion to compel defendant to produce email from backup tapes notwithstanding fact that restoration and retrieval costs may approach $100,000, court stated: “Upon installing a data storage system, it must be assumed that at some point in the future one may need to retrieve the information previously stored. That there may be deficiencies in the retrieval system (or inconvenience and cost associated with the actual retrieval) cannot be sufficient to defeat an otherwise good faith request to examine relevant information . . .”
Nature of Case: Valuation dispute arising as result of two merger agreements
Electronic Data Involved: Email stored on monthly backup tapes
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
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