Tag: Privilege or Work Product Protections

1
Bowles v. Nat’l Ass’n of Home Builders, 2004 WL 2203831 (D.D.C. Sept. 30, 2004)
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Johnson v. Bryco Arms, 222 F.R.D. 48 (E.D.N.Y. 2004)
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Strasser v. Yalamanchi, 669 So.2d 1142 (Fla. Dist. Ct. App. 1996)
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Byrne v. Byrne, 650 N.Y.S.2d 499 (1996)
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Kaufman v. Kinko’s, Inc., 2002 WL 32123851 (Del. Ch. Apr. 16, 2002) (Unpublished)
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United States v. Keystone Sanitation Co., 885 F. Supp. 672 (M.D. Pa. 1994)
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McCabe v. Ernst & Young, LLP, 221 F.R.D. 423 (D.N.J. 2004)
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Ciba-Geigy Corp. v. Sandoz, Ltd., 916 F. Supp. 404 (D.N.J. 1995)
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Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503 (S.D. Cal. 2003)
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United States v. Rigas, 281 F. Supp. 2d 733 (S.D.N.Y. 2003)

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

Johnson v. Bryco Arms, 222 F.R.D. 48 (E.D.N.Y. 2004)

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

Strasser v. Yalamanchi, 669 So.2d 1142 (Fla. Dist. Ct. App. 1996)

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

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

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

Kaufman v. Kinko’s, Inc., 2002 WL 32123851 (Del. Ch. Apr. 16, 2002) (Unpublished)

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

United States v. Keystone Sanitation Co., 885 F. Supp. 672 (M.D. Pa. 1994)

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

McCabe v. Ernst & Young, LLP, 221 F.R.D. 423 (D.N.J. 2004)

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

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

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

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

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

United States v. Rigas, 281 F. Supp. 2d 733 (S.D.N.Y. 2003)

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

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