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: Concluding that defendant had a right to obtain audiotaped prior statements of witnesses for use in cross-examining the individuals whose statements were on the tapes, court noted in footnote: “The audiotapes at issue here are the functional equivalent of written statements. It would be a towering triumph of form over substance to hold that [defendant’s former employer’s] choice of an electronic, rather than a documentary, mode of preserving the witness’ statements puts the statements beyond the reach of a subpoena duces tecum.”
Nature of Case: Criminal sexual harassment
Electronic Data Involved: Audiotapes of witness’ statements made by defendant’s former employer
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: Order allowing plaintiff unrestricted access to defendant’s computer system quashed, because the order allowed plaintiff unrestricted access to defendant’s computer system, including all of his programs and directories, without protection for any privileged or confidential information and without safeguards or restrictions to minimize any potential harm to the computer system
Nature of Case: Breach of contract suit between former partners
Electronic Data Involved: Inspection of computer system to search for financial information
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: Inadvertent disclosure of defense attorney’s emails regarding defendants’ disposition of assets in context of massive production constituted subject matter waiver of attorney-client privilege because precautions taken to avoid such disclosure were not reasonable, defendants ordered to produce unredacted attorney billing memoranda relating to issue
Nature of Case: Environmental litigation
Electronic Data Involved: Email
Key Insight: Magistrate recommended that non-parties’ motion for attorneys’ fees and other costs incurred in appearing for depositions and responding to subpoenas be denied, since non-parties failed to object to subpoenas or condition compliance on reimbursement, and an award of $58,000, without notice to plaintiffs, would be tantamount to severe prejudice
Electronic Data Involved: Email and hard copy documents
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: Court ruled that no work product waiver occurred when entire computer network account of USAO paralegal was inadvertently copied onto working copy of hard drive held by prosecution as evidence and made available to defense; defense motion to retain privileged documents denied
Nature of Case: Criminal charges of conspiracy, bank fraud, wire fraud and securities fraud
Electronic Data Involved: Privileged documents on computer hard drive
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
Copyright © 2025, K&L Gates LLP. All Rights Reserved.