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Attorney-Client Privilege
ADT Security Services, Inc. v. Swenson, 2010 U.S. Dist. LEXIS 74987 (D. Minn. July 26, 2010).
Email containing draft responses of a company to a story on a television news program was privileged because the email contained implicit requests for legal advice.
Email containing draft responses of a company to a story on a television news program was privileged because the email contained implicit requests for legal advice.
Jicarilla Apache Nation v. United States, "Jicarilla Apache Nation II", 2010 U.S. Claims LEXIS 435 (Fed. Cl. 2010).
A "clawback agreement" included in a court order entered pursuant to F. R. Evid. 502(d) allowed the government to produce hundreds of thousands of images to plaintiff without first reviewing the production for privileged documents.
A "clawback agreement" included in a court order entered pursuant to F. R. Evid. 502(d) allowed the government to produce hundreds of thousands of images to plaintiff without first reviewing the production for privileged documents.
Hoot Winc, LLC v. RSM McGladrey Financial Process Outsourcing, LLC, 2010 U.S. Dist. LEXIS 57880 (S.D. Cal. June 11, 2010).
An email message that mentioned counsel by name was not privileged because it did not contain legal advice or strategy of counsel.
An email message that mentioned counsel by name was not privileged because it did not contain legal advice or strategy of counsel.
Grunstein v. Silva, 2010 Del. Ch. LEXIS 68 (Del. Ch. Apr. 13, 2010).
Document descriptions on a privilege log that suggested the documents were not privileged did not in effect waive privilege for the documents. A "more granular" description of the documents was provided by defendants to supplement the log, and that description supported the conclusion that the documents were correctly characterized as privileged.
Document descriptions on a privilege log that suggested the documents were not privileged did not in effect waive privilege for the documents. A "more granular" description of the documents was provided by defendants to supplement the log, and that description supported the conclusion that the documents were correctly characterized as privileged.
Stengart v. Loving Care Agency, Inc., "Stengart II", 2010 N.J. LEXIS 241 (N.J. Mar. 30, 2010).
A unanimous New Jersey Supreme Court held that an employee's email with her attorney through the employee's personal and password-protected email account but using her employer's computer remained privileged. The attorney-client privilege survived even an employer "policy that banned all personal computer use and provided unambiguous notice" that the employer could retrieve and read such attorney-client communications.
A unanimous New Jersey Supreme Court held that an employee's email with her attorney through the employee's personal and password-protected email account but using her employer's computer remained privileged. The attorney-client privilege survived even an employer "policy that banned all personal computer use and provided unambiguous notice" that the employer could retrieve and read such attorney-client communications.
Lawson v. Sun Microsystems Inc., "Lawson IV", 2010 U.S. Dist. LEXIS 10860 (S.D. Ind. Feb. 8, 2010).
Sanctions against plaintiff's attorneys were lifted because their failure to alert defense counsel that plaintiff accessed defendant's password-protected documents was not intentional or in bad faith. The attorneys' failure to disclose the access resulted from their failure to read emails from their client alerting them to the access.
Sanctions against plaintiff's attorneys were lifted because their failure to alert defense counsel that plaintiff accessed defendant's password-protected documents was not intentional or in bad faith. The attorneys' failure to disclose the access resulted from their failure to read emails from their client alerting them to the access.
Pryor v. Pryor, 2010 Conn. Super. LEXIS 124 (Conn. Super. Ct. Jan. 22, 2010).
An attorney who was the defendant in a marriage dissolution action was ordered to produce an electronic copy of all his business accounts because he had not met his burden of proof that the records contained privileged information.
An attorney who was the defendant in a marriage dissolution action was ordered to produce an electronic copy of all his business accounts because he had not met his burden of proof that the records contained privileged information.
Ypsilanti Community Utilities Authority v. Meadwestvaco Air Systems LLC, 2010 U.S. Dist. LEXIS 3175 (E.D. Mich. Jan. 15, 2010).
Privilege was waived for email mistakenly listed by Bates number in an affidavit by a paralegal describing non-privileged email attachments that had been produced.
Privilege was waived for email mistakenly listed by Bates number in an affidavit by a paralegal describing non-privileged email attachments that had been produced.
Mohawk Industries, Inc. v. Carpenter, 2009 U.S. LEXIS 8942 (U.S. Dec. 8, 2009).
Court orders requiring disclosure of attorney-client privileged documents were not appealable under the collateral order doctrine before final judgment.
Court orders requiring disclosure of attorney-client privileged documents were not appealable under the collateral order doctrine before final judgment.
Laethem Equipment Co. v. Deere & Co., “Laethem II”, 2009 U.S. Dist. LEXIS 109150 (E.D. Mich. Nov. 23, 2009).
Exact textual duplicates of privileged documents also were privileged despite their different indexing numbers or different locations in electronically stored information.
Exact textual duplicates of privileged documents also were privileged despite their different indexing numbers or different locations in electronically stored information.
Multiquip, Inc. v. Water Management Systems LLC, 2009 U.S. Dist. LEXIS 109148 (D. Idaho Nov. 23, 2009).
Attorney-client privilege was not waived under Fed. R. Evid. 502 for an email chain inadvertently disclosed outside of the discovery process.
Attorney-client privilege was not waived under Fed. R. Evid. 502 for an email chain inadvertently disclosed outside of the discovery process.
Gentex Corp. v. Sutter, 2009 U.S. Dist. LEXIS 106304 (M.D. Pa. Nov. 13, 2009).
Privilege for documents on USB drives was not waived due to review of the documents by defendants' expert. The review was performed by defendants' expert in his role as a discovery expert rather than in his role as a testifying expert.
Privilege for documents on USB drives was not waived due to review of the documents by defendants' expert. The review was performed by defendants' expert in his role as a discovery expert rather than in his role as a testifying expert.
Alamar Ranch, LLC v. County of Boise, 2009 U.S. Dist. LEXIS 101866 (D. Idaho Nov. 2, 2009).
Attorney-client privilege was waived for email sent by an employee and her attorney through a company email address because the employee was on notice and the attorney was on constructive notice that email through company computers would be stored and available for retrieval by the company. However, privilege was not waived for email copied to the employee's company address by other clients of the attorney.
Attorney-client privilege was waived for email sent by an employee and her attorney through a company email address because the employee was on notice and the attorney was on constructive notice that email through company computers would be stored and available for retrieval by the company. However, privilege was not waived for email copied to the employee's company address by other clients of the attorney.
Fuller v. Interview, Inc., 2009 U.S. Dist. LEXIS 93157 (S.D.N.Y. Sept. 30, 2009).
Plaintiff was barred from using attorney-client privileged email between defendants' management and outside counsel that was inadvertently disclosed in a parallel arbitration proceeding.
Plaintiff was barred from using attorney-client privileged email between defendants' management and outside counsel that was inadvertently disclosed in a parallel arbitration proceeding.
Southeastern Mechanical Services, Inc. v. Brody, "Brody III", 2009 U.S. Dist. LEXIS 80834 (M.D. Fla. Aug. 25, 2009).
Defendant did not waive attorney-client privilege for a legal training program for employees by responding to a motion with an affidavit describing the program and attaching a handout from the program.
Defendant did not waive attorney-client privilege for a legal training program for employees by responding to a motion with an affidavit describing the program and attaching a handout from the program.
Infor Global Solutions (Michigan), Inc. v. St. Paul Fire & Marine Ins. Co., 2009 U.S. Dist. LEXIS 71370 (N.D. Cal. Aug. 3, 2009).
Using a "holistic reasonableness analysis" under Fed. R. Evid. 502, the court held that plaintiff waived its attorney-client privilege for 227 attorney-client privileged emails by producing a disc of documents without first reviewing the documents and without a "clawback" notice.
Using a "holistic reasonableness analysis" under Fed. R. Evid. 502, the court held that plaintiff waived its attorney-client privilege for 227 attorney-client privileged emails by producing a disc of documents without first reviewing the documents and without a "clawback" notice.
Nicholls v. Philips Semiconductor Manufacturing, 2009 U.S. Dist. LEXIS 64644 (S.D.N.Y. July 27, 2009).
Communications at any time between defendant's counsel and former employees of defendant remained privileged if the communications were made in order to inform counsel about the facts of the case known by the employees as a result of their jobs with defendant.
Communications at any time between defendant's counsel and former employees of defendant remained privileged if the communications were made in order to inform counsel about the facts of the case known by the employees as a result of their jobs with defendant.
United States v. Board of County Commissioners of the County of Dona Ana, New Mexico, 2009 U.S. Dist. LEXIS 65540 (D.N.M. July 27, 2009).
Failure to provide a privilege log as required by Fed. R. Civ. P. 26(b)(5)(A)(ii) when asserting privilege did not waive privilege.
Failure to provide a privilege log as required by Fed. R. Civ. P. 26(b)(5)(A)(ii) when asserting privilege did not waive privilege.
Metzler Contracting Co. LLC v. Stephens, 2009 U.S. Dist. LEXIS 61198 (D. Haw. July 15, 2009).
Plaintiff's motion to compel production was denied without prejudice because it was filed just one day after a stay of discovery pending arbitration expired. For guidance of the parties, the court reviewed Hawaii and federal law on the attorney-client privilege and the work product doctrine.
Plaintiff's motion to compel production was denied without prejudice because it was filed just one day after a stay of discovery pending arbitration expired. For guidance of the parties, the court reviewed Hawaii and federal law on the attorney-client privilege and the work product doctrine.
Richmond v. Coastal Bend College District, 2009 U.S. Dist. LEXIS 56255 (S.D. Tex. July 2, 2009).
Defendants did not waive privilege because they were not responsible for public disclosure of privileged email copied by a former employee and they tried to protect the email from further disclosure upon learning of release of the email to the public.
Defendants did not waive privilege because they were not responsible for public disclosure of privileged email copied by a former employee and they tried to protect the email from further disclosure upon learning of release of the email to the public.
Stengart v. Loving Care Agency, Inc., 2009 N.J. Super. LEXIS 143 (App.Div. June 26, 2009).
A company that by policy claimed to own everything on its computers did not have the right to review or retain privileged email of an employee with her attorney on a company laptop sent through a private, password protected email account.
A company that by policy claimed to own everything on its computers did not have the right to review or retain privileged email of an employee with her attorney on a company laptop sent through a private, password protected email account.
Clarke v. J.P. Morgan Chase & Co., “Clarke II”, 2009 U.S. Dist. LEXIS 54061 (S.D.N.Y. June 19, 2009).
Email describing the reasons for decisions by house counsel on reclassifications of jobs was not privileged because "the reasons that may be provided for a business decision that has already been made, even where that decision has been made by counsel based on a legal analysis, is not advice to a client."
Email describing the reasons for decisions by house counsel on reclassifications of jobs was not privileged because "the reasons that may be provided for a business decision that has already been made, even where that decision has been made by counsel based on a legal analysis, is not advice to a client."
Rodriguez-Monguio v. Ohio State University, 2009 U.S. Dist. LEXIS 51955 (S.D. Ohio June 3, 2009).
Although counsel overlooked an item in a letter indicating a privileged email had inadvertently been included in a document production, the court ordered return of the privileged email because counsel had sought its return immediately upon realizing it had been produced.
Although counsel overlooked an item in a letter indicating a privileged email had inadvertently been included in a document production, the court ordered return of the privileged email because counsel had sought its return immediately upon realizing it had been produced.
Johnson v. Stein Mart, Inc., 2009 U.S. Dist. LEXIS 45827 (M.D. Fla. May 20, 2009).
A magistrate judge denied plaintiff's motion for disqualification of the judge after the judge characterized as reprehensible "[c]onduct of Plaintiff's counsel in refusing to return the inadvertently disclosed emails and choosing instead to repeat select portions of those emails in Plaintiff's filings with the Court on the public record."
A magistrate judge denied plaintiff's motion for disqualification of the judge after the judge characterized as reprehensible "[c]onduct of Plaintiff's counsel in refusing to return the inadvertently disclosed emails and choosing instead to repeat select portions of those emails in Plaintiff's filings with the Court on the public record."
Hohider v. United Parcel Service, Inc., 2009 U.S. Dist. LEXIS 40428 (W.D. Pa. 2009).
Defendant's emergency motion for a stay pending appeal of an order to produce allegedly privileged email for in camera review was denied. The court was "very troubled by defendant's efforts to delay or stop the court's resolution of the motion concerning whether defendant failed to preserve electronically stored information," and "no lawyer had ever previously advanced to this court the argument that a trial court may not review allegedly privileged documents in camera."
Defendant's emergency motion for a stay pending appeal of an order to produce allegedly privileged email for in camera review was denied. The court was "very troubled by defendant's efforts to delay or stop the court's resolution of the motion concerning whether defendant failed to preserve electronically stored information," and "no lawyer had ever previously advanced to this court the argument that a trial court may not review allegedly privileged documents in camera."
Hope for Families & Community Service, Inc. v. Warren, 2009 U.S. Dist. LEXIS 46009 (M.D. Ala. Apr. 21, 2009).
Email between the president of a company and a company consultant was protected by the attorney-client privilege within the meaning of Supreme Court Standard 503(b), which was a rule never enacted by Congress but considered "an accurate definition of the federal common law of attorney-client privilege."
Email between the president of a company and a company consultant was protected by the attorney-client privilege within the meaning of Supreme Court Standard 503(b), which was a rule never enacted by Congress but considered "an accurate definition of the federal common law of attorney-client privilege."
Clarke v. J.P. Morgan Chase & Co., 2009 U.S. Dist. LEXIS 30719 (S.D.N.Y. Apr. 10, 2009).
An email from a management team that included company counsel was not privileged or work product even though company counsel drafted part of the email. When sent to management employees, the email did not state it was prepared by or sent from counsel or that it contained a recommendation from counsel. Defendant also did not show that anticipation of litigation led to the email.
An email from a management team that included company counsel was not privileged or work product even though company counsel drafted part of the email. When sent to management employees, the email did not state it was prepared by or sent from counsel or that it contained a recommendation from counsel. Defendant also did not show that anticipation of litigation led to the email.
Preferred Care Partners Holding Corp. v. Humana, Inc., 2009 U.S. Dist. LEXIS 107977 (S.D. Fla. Apr. 9, 2009).
After application of Fed. R. Evid. 502 to claims of inadvertent production of privileged email, the court held that privilege for a string of emails, including due diligence instructions from counsel, had been waived. Details from the email string were voluntarily disclosed in responding to a motion for sanctions for not producing documents referred to in the email, and the instructions had been forwarded to third party investment bankers and analysts.
After application of Fed. R. Evid. 502 to claims of inadvertent production of privileged email, the court held that privilege for a string of emails, including due diligence instructions from counsel, had been waived. Details from the email string were voluntarily disclosed in responding to a motion for sanctions for not producing documents referred to in the email, and the instructions had been forwarded to third party investment bankers and analysts.
In re Motor Fuel Temperature Sales Practices Litigation, “Motor Fuel II”, 2009 U.S. Dist. LEXIS 34026 (D. Kan. Apr. 3, 2009).
The court denied requests from 150 defendants to be relieved from the obligation to review and log documents created since filing of the lawsuit and relating to communications among joint defense counsel or between counsel and a defendant. However, the court allowed defendants to log withheld privileged documents by category despite the obligation under Fed. R. Civ. P. 26(b)(5) to create a detailed privilege log.
The court denied requests from 150 defendants to be relieved from the obligation to review and log documents created since filing of the lawsuit and relating to communications among joint defense counsel or between counsel and a defendant. However, the court allowed defendants to log withheld privileged documents by category despite the obligation under Fed. R. Civ. P. 26(b)(5) to create a detailed privilege log.
In re ConAgra Peanut Butter Products Liability Litigation, 2009 U.S. Dist. LEXIS 31122 (N.D. Ga. Mar. 23, 2009).
Defendant’s chart of personal injury claims asserted against defendant included confidential information on settlements and reserves and was protected by the attorney-client privilege and the work product doctrine. However, an email to in-house counsel and many non-lawyers about insurance coverage for the claims was not protected because the subject matter and the recipients of the email suggested that legal advice was not being sought.
Defendant’s chart of personal injury claims asserted against defendant included confidential information on settlements and reserves and was protected by the attorney-client privilege and the work product doctrine. However, an email to in-house counsel and many non-lawyers about insurance coverage for the claims was not protected because the subject matter and the recipients of the email suggested that legal advice was not being sought.
Heriot v. Byrne, 2009 U.S. Dist. LEXIS 22552 (N.D. Ill. Mar. 20, 2009).
Considering the application of recently amended Fed. R. Evid. 502 as a matter of first impression, the court adopted a test for resolving issues of privilege waiver through inadvertent production and held that plaintiffs’ prompt action to recover privileged documents avoided waiver.
Considering the application of recently amended Fed. R. Evid. 502 as a matter of first impression, the court adopted a test for resolving issues of privilege waiver through inadvertent production and held that plaintiffs’ prompt action to recover privileged documents avoided waiver.
Murphy v. Colorado Department of Corrections, 2009 U.S. Dist. LEXIS 21673 (D. Colo. Mar. 6, 2009).
Plaintiff’s motion for in camera review by the court of email that defendant claimed was privileged was denied. Defendant adequately described the email pursuant to Fed. R. Civ. P. 26(b)(5) to allow plaintiff to assess applicability of the attorney-client privilege to the email.
Plaintiff’s motion for in camera review by the court of email that defendant claimed was privileged was denied. Defendant adequately described the email pursuant to Fed. R. Civ. P. 26(b)(5) to allow plaintiff to assess applicability of the attorney-client privilege to the email.
Lawson v. Sun Microsystems, Inc., "Lawson II”, 2009 U.S. Dist. LEXIS 15131 (S.D. Ind. Feb. 26, 2009).
Email chains between plaintiff and his counsel regarding plaintiff’s accessing of password-protected files of defendant were not protected by the attorney-client privilege. Plaintiff implicitly waived privilege by claiming he accessed the files in good faith and with the approval of counsel.
Email chains between plaintiff and his counsel regarding plaintiff’s accessing of password-protected files of defendant were not protected by the attorney-client privilege. Plaintiff implicitly waived privilege by claiming he accessed the files in good faith and with the approval of counsel.
Brookdale University Hospital and Medical Center, Inc. v. Health Ins. Plan of Greater N.Y., 2009 U.S. Dist. LEXIS 11537 (E.D.N.Y. Feb. 13, 2009).
Defendant had no obligation to search documents from plaintiff for possibly privileged documents after documents already identified by plaintiff as privileged and inadvertently produced had been returned or destroyed.
Defendant had no obligation to search documents from plaintiff for possibly privileged documents after documents already identified by plaintiff as privileged and inadvertently produced had been returned or destroyed.
SEC v. Badian, 2009 U.S. Dist. LEXIS 9204 (S.D.N.Y. Jan. 26, 2009).
A nonparty company that apparently turned documents over to the Securities and Exchange Commission without asserting privilege in order to ward off a contempt proceeding and a possible criminal prosecution could not “claw back” 260 of 67,000 produced documents that new counsel claimed were privileged and should be returned by the SEC.
A nonparty company that apparently turned documents over to the Securities and Exchange Commission without asserting privilege in order to ward off a contempt proceeding and a possible criminal prosecution could not “claw back” 260 of 67,000 produced documents that new counsel claimed were privileged and should be returned by the SEC.
Post v. Killington, Ltd., 2009 U.S. Dist. LEXIS 6399 (D. Vt. Jan. 14, 2009).
Documents relating to the subject of anticipated litigation but not prepared because of the litigation were not protected by attorney-client privilege or the work product doctrine.
Documents relating to the subject of anticipated litigation but not prepared because of the litigation were not protected by attorney-client privilege or the work product doctrine.
Casual Living Worldwide, Inc. v. Lane Furniture Industries, Inc., 2009 U.S. Dist. LEXIS 756 (W.D. Ky. Jan. 6, 2009).
Privilege for an email sent by defendant to a foreign supplier was waived because defendant and the supplier shared a business interest rather that a legal interest. It was not shown that the foreign supplier could be liable under any section of the U.S. patent act under which defendant was sued.
Privilege for an email sent by defendant to a foreign supplier was waived because defendant and the supplier shared a business interest rather that a legal interest. It was not shown that the foreign supplier could be liable under any section of the U.S. patent act under which defendant was sued.
Koch Foods of Alabama, LLC v. General Electric Capital Corp., 2008 U.S. App. LEXIS 25652 (11th Cir. Ala. Dec. 18, 2008).
After noting the absence of controlling Alabama precedent, the U.S. Court of Appeals for the Eleventh Circuit affirmed use by a district court of the totality of the circumstances test in evaluating whether inadvertent disclosure of privileged email waived privilege over the email.
After noting the absence of controlling Alabama precedent, the U.S. Court of Appeals for the Eleventh Circuit affirmed use by a district court of the totality of the circumstances test in evaluating whether inadvertent disclosure of privileged email waived privilege over the email.
Bro-Tech Corp. v. Thermax, Inc. ("Bro-Tech ll"), 2008 U.S. Dist. LEXIS 100749 (E.D. Pa. Dec. 11, 2008).
Plaintiffs’ motion for use of a privileged document found during a search of defendants’ data storage devices but then “clawed-back” by defendants was denied. Plaintiffs had failed to use the procedure in the parties’ clawback agreement that provided five days for contesting any clawback.
Plaintiffs’ motion for use of a privileged document found during a search of defendants’ data storage devices but then “clawed-back” by defendants was denied. Plaintiffs had failed to use the procedure in the parties’ clawback agreement that provided five days for contesting any clawback.
Gateway Senior Housing, Ltd. v. MMA Financial, Inc., 2008 U.S. Dist. LEXIS 98770 (E.D. Tex. Dec. 4, 2008).
Defendant waived privilege over four email communications found by a court-appointed e-discovery consultant on defendant’s computer network because defendant had failed to list the email in a privilege log as required by Fed. R. Civ. P. 26(b)(5)(A). Also, a “permissive” adverse inference presumption sanction was issued against defendant as a result of unexplained losses of information on hard drives from computers of two key employees.
Defendant waived privilege over four email communications found by a court-appointed e-discovery consultant on defendant’s computer network because defendant had failed to list the email in a privilege log as required by Fed. R. Civ. P. 26(b)(5)(A). Also, a “permissive” adverse inference presumption sanction was issued against defendant as a result of unexplained losses of information on hard drives from computers of two key employees.
ReliOn, Inc. v. Hydra Fuel Cell Corp., 2008 U.S. Dist. LEXIS 98400 (D. Or. Dec. 4, 2008).
Plaintiff waived attorney-client privilege under Fed. R. Evid. 502 over email inadvertently included in documents made available to defendant for inspection. Plaintiff should have noticed the inadvertent disclosure when reviewing paper and electronic copies of documents selected by defendant during the inspection for copying.
Plaintiff waived attorney-client privilege under Fed. R. Evid. 502 over email inadvertently included in documents made available to defendant for inspection. Plaintiff should have noticed the inadvertent disclosure when reviewing paper and electronic copies of documents selected by defendant during the inspection for copying.
Alcon Mfg. v. Apotex, Inc., 2008 U.S. Dist. LEXIS 96630 (S.D. Ind. Nov. 26, 2008).
Inadvertent production of a privileged document due to an electronic document break error did not result in waiver of privilege for the document. Double-checking disclosures against a privilege log might have avoided the inadvertent production, but that “type of expensive, painstaking review,” according to the court, was “precisely what new Evidence Rule 502” was “designed to avoid.”
Inadvertent production of a privileged document due to an electronic document break error did not result in waiver of privilege for the document. Double-checking disclosures against a privilege log might have avoided the inadvertent production, but that “type of expensive, painstaking review,” according to the court, was “precisely what new Evidence Rule 502” was “designed to avoid.”
Rhoads Industries, Inc. v. Building Materials Corp. of America, "Rhoads II", 2008 U.S. Dist. LEXIS 96404 (E.D. Pa. Nov. 26, 2008).
A plaintiff that failed to provide a privilege log pursuant to Fed. R. Civ. P. 26(b)(5) waived privilege over the most recent email in a string that should have been logged but did not waive privilege over earlier email in the string that had been logged.
A plaintiff that failed to provide a privilege log pursuant to Fed. R. Civ. P. 26(b)(5) waived privilege over the most recent email in a string that should have been logged but did not waive privilege over earlier email in the string that had been logged.
Rhoads Industries, Inc. v. Building Materials Corp. of America, 2008 U.S. Dist. LEXIS 93333 (E.D. Pa. Nov. 14, 2008).
Inadvertently disclosed privileged documents not promptly listed on a log pursuant to Fed. R. Civ. P. 26(b)(5) did not have to be returned to plaintiff. However, under recently-enacted Fed. R. Evid. 502, plaintiff was entitled to return of inadvertently produced but promptly logged privileged documents. While plaintiff should have been better prepared for privilege review, return of the privileged documents to plaintiff was in the interest of justice and defendant had not met its burden of proof in showing any prejudice from having to return the documents.
Inadvertently disclosed privileged documents not promptly listed on a log pursuant to Fed. R. Civ. P. 26(b)(5) did not have to be returned to plaintiff. However, under recently-enacted Fed. R. Evid. 502, plaintiff was entitled to return of inadvertently produced but promptly logged privileged documents. While plaintiff should have been better prepared for privilege review, return of the privileged documents to plaintiff was in the interest of justice and defendant had not met its burden of proof in showing any prejudice from having to return the documents.
Air-Ride, Inc. v. DHL Express (USA), Inc., 2008 Ohio 5669 (Ohio Ct. App. Nov. 3, 2008).
Plaintiff did not have to return an inadvertently produced email between defendant’s in-house counsel and defendant’s employee. Privilege over the email had been waived when defendant filed its summary judgment motion with an affidavit that directly contradicted the contents of the email.
Plaintiff did not have to return an inadvertently produced email between defendant’s in-house counsel and defendant’s employee. Privilege over the email had been waived when defendant filed its summary judgment motion with an affidavit that directly contradicted the contents of the email.
Truckstop.net, LLC v. Sprint Corp., 2008 U.S. App. LEXIS 22417 (9th Cir. Idaho Oct. 28, 2008).
A court of appeals held that a district court order concerning privilege for an inadvertently disclosed email was not appealable under the collateral order doctrine because any irreparable harm from disclosure of allegedly privileged material had already taken place when the inadvertent disclosure occurred.
A court of appeals held that a district court order concerning privilege for an inadvertently disclosed email was not appealable under the collateral order doctrine because any irreparable harm from disclosure of allegedly privileged material had already taken place when the inadvertent disclosure occurred.
Elloie v. Allstate Ins. Co., 2008 U.S. Dist. LEXIS 89694 (E.D. La. Oct. 17, 2008).
An insurer was not sanctioned or held to have waived privilege by not responding to a discovery request because the insurer had not been informed by its counsel that the request had been made.
An insurer was not sanctioned or held to have waived privilege by not responding to a discovery request because the insurer had not been informed by its counsel that the request had been made.
Pritchard v. County of Erie (In re County of Erie), "Pritchard IV", 2008 U.S. App. LEXIS 21496 (2d Cir. Oct. 14, 2008).
A party did not waive attorney-client privilege by making advice of counsel a defense if actual reliance by the party on that advice was not shown.
A party did not waive attorney-client privilege by making advice of counsel a defense if actual reliance by the party on that advice was not shown.
Ponca Tribe of Indians of Oklahoma v. Continental Carbon Co., 2008 U.S. Dist. LEXIS 70651 (W.D. Okla. Sept. 18, 2008).
Employee email copied to company counsel to keep counsel informed about “looming legal and regulatory problems” had to be produced during discovery because the email was not shown to contain an explicit request for legal advice or a response containing legal advice.
Employee email copied to company counsel to keep counsel informed about “looming legal and regulatory problems” had to be produced during discovery because the email was not shown to contain an explicit request for legal advice or a response containing legal advice.
Employers Insurance Company of Wausau v. Skinner, 2008 U.S. Dist. LEXIS 76620 (E.D.N.Y. Sept. 17, 2008).
Defendants were ordered to return or destroy a single page of attorney-client privileged email inadvertently produced with about 396 other pages of documents because, on balance, counsel for plaintiff took reasonable steps to avoid disclosure of the document. The court considered it “wholly improper” that defendants filed the privileged document on the court’s publicly-accessible ECF system without first notifying counsel for plaintiff or the court.
Defendants were ordered to return or destroy a single page of attorney-client privileged email inadvertently produced with about 396 other pages of documents because, on balance, counsel for plaintiff took reasonable steps to avoid disclosure of the document. The court considered it “wholly improper” that defendants filed the privileged document on the court’s publicly-accessible ECF system without first notifying counsel for plaintiff or the court.
Asset Funding Group, LLC v. Adams & Reese, LLP, 2008 U.S. Dist. LEXIS 68695 (E.D. La. Sept. 9, 2008).
The plaintiff in a legal malpractice action did not waive attorney-client privilege over documents by providing the documents to its former law firm during the firm’s representation of plaintiff. However, attorney-client privilege was waived as to email which related to an issue raised in plaintiff’s malpractice action.
The plaintiff in a legal malpractice action did not waive attorney-client privilege over documents by providing the documents to its former law firm during the firm’s representation of plaintiff. However, attorney-client privilege was waived as to email which related to an issue raised in plaintiff’s malpractice action.
Bobbitt v. Academy of Court Reporting, Inc., 2008 U.S. Dist. LEXIS 65513 (E.D. Mich. Aug. 26, 2008).
A magistrate judge committed clear error in ordering plaintiffs to return privileged email inadvertently disclosed by defendants. Defendants waived attorney-client privilege through their delay in objecting to plaintiffs’ use of the email. Also, the email was “extremely relevant” to the merits of plaintiffs’ fraud claim.
A magistrate judge committed clear error in ordering plaintiffs to return privileged email inadvertently disclosed by defendants. Defendants waived attorney-client privilege through their delay in objecting to plaintiffs’ use of the email. Also, the email was “extremely relevant” to the merits of plaintiffs’ fraud claim.
Postorivo v. AG Paintball Holdings, Inc., 2008 Del. Ch. LEXIS 120 (Del. Ch. Aug. 20, 2008).
Attorneys who possessed privileged communications of the opposing side were disqualified from further participation in the litigation because they failed to promptly alert the other side to their possession of the privileged materials or to take reasonable steps to avoid intruding upon the other side’s colorable claims of privilege.
Attorneys who possessed privileged communications of the opposing side were disqualified from further participation in the litigation because they failed to promptly alert the other side to their possession of the privileged materials or to take reasonable steps to avoid intruding upon the other side’s colorable claims of privilege.
Hexion Specialty Chemicals, Inc. v. Huntsman Corp., 2008 Del. Ch. LEXIS 108 (Del. Ch. Aug. 12, 2008).
Email among outside counsel for a company engaged in merger negotiations that was copied to the company’s investment banker and distributed to staff at the investment banker retained its attorney-client privilege.
Email among outside counsel for a company engaged in merger negotiations that was copied to the company’s investment banker and distributed to staff at the investment banker retained its attorney-client privilege.
Sokol v. Wyeth, Inc., 2008 U.S. Dist. LEXIS 60976 (S.D.N.Y. Aug. 4, 2008).
Email from plaintiff to his attorney’s consultant who was acting as a direct advisor to plaintiff was not protected by the attorney-client privilege simply because it was copied to the attorney.
Email from plaintiff to his attorney’s consultant who was acting as a direct advisor to plaintiff was not protected by the attorney-client privilege simply because it was copied to the attorney.
SEC v. Finazzo, 2008 U.S. Dist. LEXIS 30604 (S.D.N.Y. Mar. 27, 2008).
Compliance with a Securities and Exchange Commission subpoena by the former executive vice president of a company was ordered after the company publicly disclosed a conflict of interest of the EVP discovered by the company in an email to the EVP from his estate planning counsel sent to the EVP’s company email address.
Compliance with a Securities and Exchange Commission subpoena by the former executive vice president of a company was ordered after the company publicly disclosed a conflict of interest of the EVP discovered by the company in an email to the EVP from his estate planning counsel sent to the EVP’s company email address.
Faloney v. Wachovia Bank, N.A., 2008 U.S. Dist. LEXIS 49547 (E.D. Pa. June 25, 2008).
An inadvertently produced email drafted by in-house counsel of a bank summarizing a teleconference among in-house counsel and corporate operations department managers handling loss management was protected by the attorney-client privilege and the work product doctrine. The meeting followed receipt by the bank of a temporary restraining order freezing a customer account, grand jury subpoenas, and a copy of a letter from an Assistant U.S. Attorney suggesting bank involvement in illegal activity.
An inadvertently produced email drafted by in-house counsel of a bank summarizing a teleconference among in-house counsel and corporate operations department managers handling loss management was protected by the attorney-client privilege and the work product doctrine. The meeting followed receipt by the bank of a temporary restraining order freezing a customer account, grand jury subpoenas, and a copy of a letter from an Assistant U.S. Attorney suggesting bank involvement in illegal activity.
Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 U.S. Dist. LEXIS 42025 (D. Md. May 29, 2008).
Defendants who inadvertently disclosed electronically stored information during discovery waived attorney-client privilege and work product protection for the information. Defendants failed to pursue a “clawback agreement” and when their privilege log was challenged, they failed to demonstrate for the court that their search and information retrieval process was adequately designed to screen out privileged or protected information.
Defendants who inadvertently disclosed electronically stored information during discovery waived attorney-client privilege and work product protection for the information. Defendants failed to pursue a “clawback agreement” and when their privilege log was challenged, they failed to demonstrate for the court that their search and information retrieval process was adequately designed to screen out privileged or protected information.
Elkins v. District of Columbia, 2008 U.S. Dist. LEXIS 41391 (D.D.C. May 28, 2008).
The District of Columbia government waived attorney-client privilege over documents relating to the same subject matter as privileged documents already in plaintiffs’ possession that the government suggested may have been released by a disgruntled employee.
The District of Columbia government waived attorney-client privilege over documents relating to the same subject matter as privileged documents already in plaintiffs’ possession that the government suggested may have been released by a disgruntled employee.
In re Mirant Corp., 2008 Bankr. LEXIS 1486 (Bankr. N.D. Tex. May 15, 2008).
Inadvertently disclosed attorney-client email did not have to be returned to the parent company of a company that the parent company sold because the attorney-client privilege ran with the company that was sold.
Inadvertently disclosed attorney-client email did not have to be returned to the parent company of a company that the parent company sold because the attorney-client privilege ran with the company that was sold.
Ferron v. Search Cactus, L.L.C.,, 2008 U.S. Dist. LEXIS 34599 (S.D. Ohio Apr. 28, 2008).
In order to reduce privacy intrusions and privilege waiver issues, the court directed computer forensic experts for plaintiff and defendant to act as officers of the court in reviewing mirror images of plaintiff attorney’s computer hard drives.
In order to reduce privacy intrusions and privilege waiver issues, the court directed computer forensic experts for plaintiff and defendant to act as officers of the court in reviewing mirror images of plaintiff attorney’s computer hard drives.
Kalra v. HSBC Bank USA, N.A., 2008 U.S. Dist. LEXIS 34696 (E.D.N.Y. Apr. 28, 2008).
A pro se plaintiff was ordered to return three privileged documents inadvertently produced by defendant. Although the production of 100 pages in which the three privileged documents were included was small, that was not a factor suggesting waiver of privilege because the number of inadvertently disclosed documents also was small.
A pro se plaintiff was ordered to return three privileged documents inadvertently produced by defendant. Although the production of 100 pages in which the three privileged documents were included was small, that was not a factor suggesting waiver of privilege because the number of inadvertently disclosed documents also was small.
Business Integration Services, Inc. v. AT&T Corp., 2008 U.S. Dist. LEXIS 33952 (S.D.N.Y. Apr. 22, 2008).
Corporate counsel’s failure to request return or destruction of privileged email was a waiver by the corporation of its attorney-client privilege.
Corporate counsel’s failure to request return or destruction of privileged email was a waiver by the corporation of its attorney-client privilege.
In re 28 U.S.C. § 1782, 2008 U.S. Dist. LEXIS 30617 (S.D.N.Y. Apr. 1, 2008).
The intermediary in the sale of a sculpture was ordered to produce email communications with her counsel who also served as counsel for the buyer of the sculpture. The communications were not protected by the attorney-client privilege because they consisted of communications between counsel and the buyer in which the intermediary’s participation was useful but not necessary to the giving of legal advice.
The intermediary in the sale of a sculpture was ordered to produce email communications with her counsel who also served as counsel for the buyer of the sculpture. The communications were not protected by the attorney-client privilege because they consisted of communications between counsel and the buyer in which the intermediary’s participation was useful but not necessary to the giving of legal advice.
Rexam Beverage Can Co. v. Bolger, 2008 U.S. Dist. LEXIS 22042 (N.D. Ill. Mar. 18, 2008).
Email sent to in-house counsel who also acted as plaintiff's president was not privileged because it did not contain any request for legal advice or reveal the substance of any legal consultation.
Email sent to in-house counsel who also acted as plaintiff's president was not privileged because it did not contain any request for legal advice or reveal the substance of any legal consultation.
Harleysville Lake States Ins. Co. v. Granite Ridge Builders, Inc., 2008 U.S. Dist. LEXIS 19353 (N.D. Ind. Mar. 12, 2008).
An insured willing to disclose to its insurer privileged email subject to non-waiver of privilege in underlying litigation against the insured obtained court approval of a stipulated protective order. The order was entered following the court's in camera review of the email to determine which email documents were protected by the attorney-client privilege or the work product doctrine.
An insured willing to disclose to its insurer privileged email subject to non-waiver of privilege in underlying litigation against the insured obtained court approval of a stipulated protective order. The order was entered following the court's in camera review of the email to determine which email documents were protected by the attorney-client privilege or the work product doctrine.
Malec Holdings II, Ltd. v. English, 2008 U.S. Dist. LEXIS 21844 (E.D. Wisc. Mar. 6, 2008).
Plaintiff waived attorney-client privilege for an email from his attorney by including unredacted information from the email in an affidavit filed in another action.
Plaintiff waived attorney-client privilege for an email from his attorney by including unredacted information from the email in an affidavit filed in another action.
United States v. Woody, 2008 U.S. Dist. LEXIS 16734 (W.D.N.C. Feb. 20, 2008).
Appointment of a special master was unnecessary to review the government's "taint procedure" to avoid prosecutor review of privileged documents seized from defendant. Defendant's request for the master was supported only by concern that no privileged documents were found on seized computers.
Appointment of a special master was unnecessary to review the government's "taint procedure" to avoid prosecutor review of privileged documents seized from defendant. Defendant's request for the master was supported only by concern that no privileged documents were found on seized computers.
Digene Corp. v. Third Wave Technologies, Inc., 2008 U.S. Dist. LEXIS 10816 (W.D. Wisc. Feb. 8, 2008).
A PowerPoint presentation of survey responses by a group of plaintiff's executives and an outside counsel was not protected from discovery by the attorney-client privilege because the presentation was a summary of input on strategic business questions rather than a legal presentation.
A PowerPoint presentation of survey responses by a group of plaintiff's executives and an outside counsel was not protected from discovery by the attorney-client privilege because the presentation was a summary of input on strategic business questions rather than a legal presentation.
Figueras v. P.R. Elec. Power Auth., 2008 U.S. Dist. LEXIS 40413 (D.P.R. Jan. 30, 2008).
The court decided that defendant waived attorney-client privilege for an email document inadvertently produced to plaintiff because defendant’s lack of explanation of steps taken to prevent inadvertent disclosure, the limited number of documents being produced, and the six-week failure of defendant to discover the inadvertent disclosure indicated negligence.
The court decided that defendant waived attorney-client privilege for an email document inadvertently produced to plaintiff because defendant’s lack of explanation of steps taken to prevent inadvertent disclosure, the limited number of documents being produced, and the six-week failure of defendant to discover the inadvertent disclosure indicated negligence.
Apsley v. Boeing Co., " Boeing II", 2008 U.S. Dist. LEXIS 5274 (D. Kan. Jan. 22, 2008).
Plaintiffs' request for an in camera review of documents that defendant claimed were privileged was denied because plaintiffs presented no evidence to infer that defense counsel's veracity in preparing a privilege log should be doubted.
Plaintiffs' request for an in camera review of documents that defendant claimed were privileged was denied because plaintiffs presented no evidence to infer that defense counsel's veracity in preparing a privilege log should be doubted.
Koch Foods of Alabama LLC v. General Electric Capital Corp., 2008 U.S. Dist. LEXIS 3738 (M.D. Ala. Jan. 17, 2008).
After predicting the Alabama Supreme Court would adopt the "totality of the circumstances" test for waiver of attorney-client privilege, a federal court in Alabama approved a protective order requiring return of a page of counsel's email included in the middle of a lease agreement produced during discovery.
After predicting the Alabama Supreme Court would adopt the "totality of the circumstances" test for waiver of attorney-client privilege, a federal court in Alabama approved a protective order requiring return of a page of counsel's email included in the middle of a lease agreement produced during discovery.
United States v. Warshak, "Warshak IV", 2007 U.S. Dist. LEXIS 81863 (D. Ohio Nov. 5, 2007).
Although the government's screen of seized electronic documents for privileged material would have been more effective if key word searches of the documents had been made, the court refused to dismiss defendants' indictment after holding a Kastigar-like hearing and determining that the government had not used defendants' privileged documents.
Although the government's screen of seized electronic documents for privileged material would have been more effective if key word searches of the documents had been made, the court refused to dismiss defendants' indictment after holding a Kastigar-like hearing and determining that the government had not used defendants' privileged documents.
Muro v. Target Corp., "Muro II", 2007 U.S. Dist. LEXIS 81776 (N.D. Ill. Nov. 2, 2007).
A party was not required under Fed. R. Civ. P. 26(b)(5)(A) to itemize on a privilege log each email within an email string sent to counsel.
A party was not required under Fed. R. Civ. P. 26(b)(5)(A) to itemize on a privilege log each email within an email string sent to counsel.
Scott v. Beth Israel Medical Center, Inc., 2007 N.Y. Misc. LEXIS 7114 (N.Y. Sup. Ct. Oct. 17, 2007).
Email between plaintiff employee and his attorney transmitted through his former employer's email system was not protected by attorney-client privilege or the work product doctrine. The employee knew of the employer's policy that documents transmitted over the employer's computer system belonged to the employer and could be accessed and disclosed by the employer without prior notice.
Email between plaintiff employee and his attorney transmitted through his former employer's email system was not protected by attorney-client privilege or the work product doctrine. The employee knew of the employer's policy that documents transmitted over the employer's computer system belonged to the employer and could be accessed and disclosed by the employer without prior notice.
In re Ebay Seller Antitrust Litigation, 2007 U.S. Dist. LEXIS 75498 (N.D. Cal. Oct. 2, 2007).
Defendant was not obligated to produce copies of document retention notices sent to 600 of its employees but was obligated to disclose which employees received the notices and what the employees had done in response to the notices.
Defendant was not obligated to produce copies of document retention notices sent to 600 of its employees but was obligated to disclose which employees received the notices and what the employees had done in response to the notices.
United States v. Warshak, "Warshak II", 2007 U.S. Dist. LEXIS 61358 (S.D. Ohio Aug. 21, 2007).
Although the government sealed off offices and laptop computers of in-house counsel during the execution of a search warrant at defendants' facilities, the court ordered a hearing at which the government would be required to show that none of the evidence obtained against defendants was obtained through the use of privileged information.
Although the government sealed off offices and laptop computers of in-house counsel during the execution of a search warrant at defendants' facilities, the court ordered a hearing at which the government would be required to show that none of the evidence obtained against defendants was obtained through the use of privileged information.
In re Vioxx Products Liability Litigation, 2007 U.S. Dist. LEXIS 60299 (E.D. La. Aug. 14, 2007).
A sample resolution process recommended by the U.S. Court of Appeals for the Fifth Circuit for determining attorney-client privilege for nearly 500,000 pages of email documents resulted in a comprehensive description by a special master of guidelines for attorney-client privilege. The cost of over $400,000 for the special master's review was shared by the parties.
A sample resolution process recommended by the U.S. Court of Appeals for the Fifth Circuit for determining attorney-client privilege for nearly 500,000 pages of email documents resulted in a comprehensive description by a special master of guidelines for attorney-client privilege. The cost of over $400,000 for the special master's review was shared by the parties.
Pinnacle Pizza Co. v. Little Caesar Enterprises, Inc., 2007 U.S. Dist. LEXIS 48845 (D.S.D. Jul. 3, 2007).
A recent amendment to Fed. R. Civ. P. 26(b)(5) to provide that inadvertent disclosure of privileged electronic evidence was not an automatic waiver of privilege was drafted broadly enough to cover all types of discovery, including depositions.
A recent amendment to Fed. R. Civ. P. 26(b)(5) to provide that inadvertent disclosure of privileged electronic evidence was not an automatic waiver of privilege was drafted broadly enough to cover all types of discovery, including depositions.
Kingsway Financial Services v. Pricewaterhouse-Coopers LLP, 2007 U.S. Dist. LEXIS 46660 (S.D.N.Y. June 27, 2007).
Attorney-client privilege for an email and its attachment sent by an executive of plaintiff to plaintiff's counsel was waived because the email was attached to service copies of a letter to the court filed under seal.
Attorney-client privilege for an email and its attachment sent by an executive of plaintiff to plaintiff's counsel was waived because the email was attached to service copies of a letter to the court filed under seal.
Miles v. Wal-Mart Stores, Inc., 2007 U.S. Dist. LEXIS 46747 (W.D. Ark. June 26, 2007).
Defendant was ordered to produce documents listed in its privilege log that were authored or received by plaintiff and to provide affidavits detailing the privilege claimed on each of the other documents in the log.
Defendant was ordered to produce documents listed in its privilege log that were authored or received by plaintiff and to provide affidavits detailing the privilege claimed on each of the other documents in the log.
Wachtel v. Guardian Life Ins., "Wachtel III", 2007 U.S. Dist. LEXIS 43842 (D.N.J. June 18, 2007).
In order to support an in camera examination of privileged documents, plaintiffs made a sufficient prima facie showing that the crime-fraud exception to the attorney-client privilege may apply.
In order to support an in camera examination of privileged documents, plaintiffs made a sufficient prima facie showing that the crime-fraud exception to the attorney-client privilege may apply.
Pritchard v. County of Erie, "Pritchard III", 2007 U.S. Dist. LEXIS 42528 (W.D.N.Y. June 12, 2007).
Attorney-client privilege for email with a county attorney regarding alternative strip search policies was not waived through distribution of the email to Sheriff's Department officials because the officials had a need to know the legal basis for a recommendation to change the Department's policy on strip searches.
Attorney-client privilege for email with a county attorney regarding alternative strip search policies was not waived through distribution of the email to Sheriff's Department officials because the officials had a need to know the legal basis for a recommendation to change the Department's policy on strip searches.
Fifty-Six Hope Road Music, Ltd. v. Mayah Collections, Inc., 2007 U.S. Dist. LEXIS 43012 (D. Nev. June 11, 2007).
After deciding that entering hundreds or thousands of email documents on a privilege log would be unduly burdensome, the court ordered plaintiffs' counsel to file an affidavit confirming a good-faith effort to produce non-privileged documents, stating the number of privileged documents being withheld, and, for attorney-client documents, declaring that only attorneys and clients were parties to the communications. For work product doctrine documents, a privilege log would be required.
After deciding that entering hundreds or thousands of email documents on a privilege log would be unduly burdensome, the court ordered plaintiffs' counsel to file an affidavit confirming a good-faith effort to produce non-privileged documents, stating the number of privileged documents being withheld, and, for attorney-client documents, declaring that only attorneys and clients were parties to the communications. For work product doctrine documents, a privilege log would be required.
Muro v. Target Corp., 2007 U.S. Dist. LEXIS 41442 (N.D. Ill. June 7, 2007).
Information about each communication within an email chain or string had to be provided on a privilege log sufficient to allow the opponent and the court to assess applicability of the attorney-client privilege to each message in the chain.
Information about each communication within an email chain or string had to be provided on a privilege log sufficient to allow the opponent and the court to assess applicability of the attorney-client privilege to each message in the chain.
United States v. National Association of Realtors, 2007 U.S. Dist. LEXIS 37519 (N.D. Ill. May 22, 2007).
Facts described in an email from an association's in-house counsel to association staff relaying antitrust law advice from outside counsel were included in the email in order to provide legal advice, and the entire email was privileged.
Facts described in an email from an association's in-house counsel to association staff relaying antitrust law advice from outside counsel were included in the email in order to provide legal advice, and the entire email was privileged.
Gragg v. International Management Group, 2007 U.S. Dist. LEXIS 25780 (N.D.N.Y. Apr. 5, 2007).
Defendant waived attorney-client privilege by assigning document collection to a non-attorney assistant a sending a CD of collected documents to outside counsel who sent the CD on to plaintiff's counsel without reviewing the documents.
Defendant waived attorney-client privilege by assigning document collection to a non-attorney assistant a sending a CD of collected documents to outside counsel who sent the CD on to plaintiff's counsel without reviewing the documents.
Expert Choice, Inc. v. Gartner, Inc., 2007 U.S. Dist. LEXIS 21208 (D. Conn. Mar. 27, 2007).
A court determined after in camera review that a large number of email documents were improperly withheld from production because counsel withheld entire documents rather than produce documents with redactions of privileged information.
A court determined after in camera review that a large number of email documents were improperly withheld from production because counsel withheld entire documents rather than produce documents with redactions of privileged information.
Williams v. Sprint/United Mgmt. Co.,, 2007 U.S. Dist. LEXIS 58345 (D. Kan. Mar. 19, 2007).
The fact that documents were listed on a privilege log but then removed from the log for lack of privilege was insufficient by itself to establish relevancy of the documents and an obligation to produce them.
The fact that documents were listed on a privilege log but then removed from the log for lack of privilege was insufficient by itself to establish relevancy of the documents and an obligation to produce them.
In re Napster, Inc. Copyright Litigation, "Napster II", 2007 U.S. App. LEXIS 5836 (9th Cir. Mar. 14, 2007).
Parties seeking production of their opponents' privileged attorney-client communications under the crime-fraud exception must prove by a preponderance of the evidence that the exception applies, and the opponents must be given an opportunity to present evidence that the exception does not apply.
Parties seeking production of their opponents' privileged attorney-client communications under the crime-fraud exception must prove by a preponderance of the evidence that the exception applies, and the opponents must be given an opportunity to present evidence that the exception does not apply.
Pierce v. Girl Scout of Greater N.Y., Inc., 2007 U.S. Dist. LEXIS 16499 (S.D.N.Y. Mar. 9, 2007).
Plaintiff and his counsel were ordered to destroy an email that defendants had shown was produced inadvertently and was a privileged communication seeking legal advice.
Plaintiff and his counsel were ordered to destroy an email that defendants had shown was produced inadvertently and was a privileged communication seeking legal advice.
Hotwork-USA, LLC v. Excelsius Int'l, Ltd., 2007 U.S. Dist. LEXIS 19803 (E.D. Ky. Mar. 2, 2007).
Plaintiff's disclosure of an email describing a conversation with plaintiff's counsel in which counsel asked for a list of items to request in discovery from defendants did not waive plaintiff's attorney-client privilege for all documents requested by defendants. The disclosed email did not contain advice of counsel and was not privileged.
Plaintiff's disclosure of an email describing a conversation with plaintiff's counsel in which counsel asked for a list of items to request in discovery from defendants did not waive plaintiff's attorney-client privilege for all documents requested by defendants. The disclosed email did not contain advice of counsel and was not privileged.
Celerity, Inc. v. Ultra Clean Holding, Inc., 2007 U.S. Dist. LEXIS 18307 (N.D. Cal. Feb. 28, 2007).
Party ordered to produce drafts of counsel's legal advice and opinions, including metadata. Court held that party waived the attorney-client privilege by asserting an advice-of-counsel defense in patent infringement litigation.
Party ordered to produce drafts of counsel's legal advice and opinions, including metadata. Court held that party waived the attorney-client privilege by asserting an advice-of-counsel defense in patent infringement litigation.
Capitano v. Ford Motor Co., 2007 N.Y. Misc. LEXIS 453 (N.Y. Sup. Ct. Feb. 26, 2007).
Litigation-hold instructions from a company's attorneys to the company's employees dealing with a record management program were privileged. While the instructions could have led to discovery of admissible evidence and, according to plaintiffs, might show spoliation occurred, the instructions were not subject to disclosure.
Litigation-hold instructions from a company's attorneys to the company's employees dealing with a record management program were privileged. While the instructions could have led to discovery of admissible evidence and, according to plaintiffs, might show spoliation occurred, the instructions were not subject to disclosure.
Heartland Surgical Specialty Hosp., LLC v. Midwest Division, Inc., 2007 U.S. Dist. LEXIS 13386 (D. Kan. Feb. 23, 2007).
Plaintiff was ordered to supplement its privilege logs to conform to a protocol agreed upon with defendants and to add additional information required by the court.
Plaintiff was ordered to supplement its privilege logs to conform to a protocol agreed upon with defendants and to add additional information required by the court.
Geer v. Gilman Corp., 2007 U.S. Dist. LEXIS 38852 (D. Conn. Feb. 12, 2007).
Plaintiff's email communications with her attorney through her fiancee's laptop and email account remained privileged because her fianc‚e could be considered plaintiff's agent and a conduit for her communications with her attorney.
Plaintiff's email communications with her attorney through her fiancee's laptop and email account remained privileged because her fianc‚e could be considered plaintiff's agent and a conduit for her communications with her attorney.
United States v. Stein, 2007 U.S. Dist. LEXIS 9768 (S.D.N.Y. Feb. 9, 2007).
The government was not required to produce communications with the IRS concerning tax shelters after inadvertently producing an email describing a meeting with IRS personnel. The government disclosed a slide presentation referred to in the email and a list of participants in the meeting, and further Brady material demands from defendants were a "fishing expedition."
The government was not required to produce communications with the IRS concerning tax shelters after inadvertently producing an email describing a meeting with IRS personnel. The government disclosed a slide presentation referred to in the email and a list of participants in the meeting, and further Brady material demands from defendants were a "fishing expedition."
Amersham Biosciences Corp. v. PerkinElmer, Inc., 2007 U.S. Dist. LEXIS 6841 (D.N.J. Jan. 31, 2007).
An order to return inadvertently produced documents was reversed for further consideration. A finding by a magistrate judge that reasonable precautions had been taken to avoid inadvertent disclosure of the privileged documents was incorrect because the disclosed documents on their face were privileged.
An order to return inadvertently produced documents was reversed for further consideration. A finding by a magistrate judge that reasonable precautions had been taken to avoid inadvertent disclosure of the privileged documents was incorrect because the disclosed documents on their face were privileged.
Laun v. Laun, 2007 U.S. Dist. LEXIS 4500 (N.D. Ind. Jan. 19, 2007).
A general claim of attorney-client privilege asserted by a non-party attorney was an insufficient response to a subpoena, and the attorney was ordered to produce responsive documents or a privilege log detailing information for each document in support of the claim of attorney-client privilege.
A general claim of attorney-client privilege asserted by a non-party attorney was an insufficient response to a subpoena, and the attorney was ordered to produce responsive documents or a privilege log detailing information for each document in support of the claim of attorney-client privilege.
Raba v. Suozzi, 2007 U.S. Dist. LEXIS 2099 (E.D.N.Y. Jan. 11, 2007).
Documents containing communications regarding legal advice and "particularly the interpretation and application of legal principles to guide future conduct or to assess past conduct" were privileged and not required to be produced.
Documents containing communications regarding legal advice and "particularly the interpretation and application of legal principles to guide future conduct or to assess past conduct" were privileged and not required to be produced.
MLC Automotive, LLC v. Town of Southern Pines, 2007 U.S. Dist. LEXIS 2841 (M.D.N.C. Jan. 11, 2007).
Communications of an engineer with attorneys for a party in a zoning dispute were protected by the attorney-client privilege. Although the engineer was not a litigation consultant, he was providing the attorneys with information needed to obtain various permits.
Communications of an engineer with attorneys for a party in a zoning dispute were protected by the attorney-client privilege. Although the engineer was not a litigation consultant, he was providing the attorneys with information needed to obtain various permits.
Truckstop.net, L.L.C. v. Sprint Communications Co., L.P., 2007 U.S. Dist. LEXIS 1536 (D. Idaho Jan. 8, 2007).
While a description of legal advice from counsel in an email was privileged, an explanation in the email of the real world impact of that advice, as learned from defendant's engineering group, was not privileged.
While a description of legal advice from counsel in an email was privileged, an explanation in the email of the real world impact of that advice, as learned from defendant's engineering group, was not privileged.
In re Fedex Ground Package System, Inc., 2007 U.S. Dist. LEXIS 1865 (N.D. Ind. Jan. 5, 2007).
A single email sent by plaintiffs before plaintiffs sought court action was not the meaningful dialogue to resolve a discovery dispute envisioned by Fed. R. Civ. P. 37(a).
A single email sent by plaintiffs before plaintiffs sought court action was not the meaningful dialogue to resolve a discovery dispute envisioned by Fed. R. Civ. P. 37(a).
Baran v. Walsh Construction Co., 2007 U.S. Dist. LEXIS 953 (N.D. Ill. Jan. 4, 2007).
Defendant was ordered to produce email to and from its in-house counsel because counsel was acting in his capacity as head of defendant's insurance department and the email did not contain legal advice protected by the attorney-client privilege.
Defendant was ordered to produce email to and from its in-house counsel because counsel was acting in his capacity as head of defendant's insurance department and the email did not contain legal advice protected by the attorney-client privilege.
Pritchard v. County of Erie (In re County of Erie), 2007 U.S. App. LEXIS 26 (2d Cir. 2007).
In a ruling of first impression concerning policy advice by a government lawyer, a district court was ordered to vacate its decision that a county lawyer's email went beyond legal analysis and was not privileged. The court of appeals concluded that email discussing Fourth Amendment compliance of a strip search policy was sent for the predominant purpose of soliciting or rendering legal advice.
In a ruling of first impression concerning policy advice by a government lawyer, a district court was ordered to vacate its decision that a county lawyer's email went beyond legal analysis and was not privileged. The court of appeals concluded that email discussing Fourth Amendment compliance of a strip search policy was sent for the predominant purpose of soliciting or rendering legal advice.
In re JDN Real Estate--McKinney L.P., 2006 Tex. App. LEXIS 11087 (Tex. App. Dec. 28, 2006).
Following its own in camera inspection of documents for privileged content, an appellate court confirmed that documents containing legal strategy and communications between a redevelopment agency and a city regarding research by their shared attorney were protected from disclosure by the attorney-client privilege.
Following its own in camera inspection of documents for privileged content, an appellate court confirmed that documents containing legal strategy and communications between a redevelopment agency and a city regarding research by their shared attorney were protected from disclosure by the attorney-client privilege.
The Bedford, LLC v. Safeco Insurance Co. of America, 2006 Wash. App. LEXIS 2702 (Wash. Ct. App. Dec. 11, 2006).
A trial court's judgment following a jury verdict for defendant was remanded for further consideration because defendant's privilege log did not mention any attorney and did not provide a basis for a privilege claim. Refusal of the trial court in camera to review documents listed on the log was an abuse of discretion.
A trial court's judgment following a jury verdict for defendant was remanded for further consideration because defendant's privilege log did not mention any attorney and did not provide a basis for a privilege claim. Refusal of the trial court in camera to review documents listed on the log was an abuse of discretion.
Kovacs v. Hershey Co.,, 2006 U.S. Dist. LEXIS 82963 (D. Colo. Nov. 14, 2006).
Following an in camera review of documents, a magistrate judge determined that defendants had failed to establish that redacted portions of documents were subject to the attorney-client privilege despite descriptions of the documents in a privilege log indicating that the documents had been authored by an attorney and not transmitted to anyone outside the privilege.
Following an in camera review of documents, a magistrate judge determined that defendants had failed to establish that redacted portions of documents were subject to the attorney-client privilege despite descriptions of the documents in a privilege log indicating that the documents had been authored by an attorney and not transmitted to anyone outside the privilege.
Estes v. Health Ventures, 2006 U.S. Dist. LEXIS 80719 (S.D. Ill. Nov. 3, 2006).
The crime-fraud exception to the attorney-client privilege did not apply to a conversation with in-house counsel of a company official deciding to terminate plaintiff's employment. Allegedly asking the attorney how long to wait before hiring a replacement and lying to the employee about why she was fired was not, without more, illegal.
The crime-fraud exception to the attorney-client privilege did not apply to a conversation with in-house counsel of a company official deciding to terminate plaintiff's employment. Allegedly asking the attorney how long to wait before hiring a replacement and lying to the employee about why she was fired was not, without more, illegal.
Kovacs v. Hershey Co., 2006 U.S. Dist. LEXIS 77777 (D. Colo. Oct. 25, 2006).
Although a magistrate judge believed defendant's privilege log adequately established the lack of waiver of attorney-client privilege, he ordered an in camera review of the privileged documents following the court's agreement with plaintiff that the burden of showing there was no waiver was on the proponent of the privilege.
Although a magistrate judge believed defendant's privilege log adequately established the lack of waiver of attorney-client privilege, he ordered an in camera review of the privileged documents following the court's agreement with plaintiff that the burden of showing there was no waiver was on the proponent of the privilege.
Delta Financial Corporation v. Morrison,, 2006 N.Y. Misc. Lexis 3115 (N.Y. Sup. Ct. Oct. 24, 2006).
A third party's reply to his attorney's email forwarding a request from a litigant's attorney for an update on discovery remained privileged even though the third party inadvertently sent his reply to the litigant's attorney.
A third party's reply to his attorney's email forwarding a request from a litigant's attorney for an update on discovery remained privileged even though the third party inadvertently sent his reply to the litigant's attorney.
Transocean Capital, Inc v. Fortin, 2006 Mass. Super. LEXIS 504 (Mass. Super. Ct. Oct. 20, 2006).
A board member's email with his outside counsel using his company's computer system remained privileged because the company did not provide its employees with fair warning that email on the company's computer system could not be considered confidential.
A board member's email with his outside counsel using his company's computer system remained privileged because the company did not provide its employees with fair warning that email on the company's computer system could not be considered confidential.
Long v. Marubeni America Corp., 2006 U.S. Dist. LEXIS 76594 (S.D.N.Y. Oct. 19, 2006).
Email among high-level employees of a company and their attorney using private password protected email accounts lost attorney-client privilege and work product doctrine protection from disclosure because the email was sent and received on company-provided computers.
Email among high-level employees of a company and their attorney using private password protected email accounts lost attorney-client privilege and work product doctrine protection from disclosure because the email was sent and received on company-provided computers.
Leone v. Fisher, 2006 U.S. Dist. LEXIS 75571 (D. Conn. Oct. 18, 2006).
The attorney for plaintiff in a false arrest action was required to respond to defendant's third party subpoena and produce documents in his file relating to plaintiff's arrests because those documents, such as his communications with plaintiff's husband, were not protected by the attorney-client privilege.
The attorney for plaintiff in a false arrest action was required to respond to defendant's third party subpoena and produce documents in his file relating to plaintiff's arrests because those documents, such as his communications with plaintiff's husband, were not protected by the attorney-client privilege.
OM Group, Inc. v. Mooney, 2006 U.S. Dist. LEXIS 76007 (N.D. Ohio Oct. 18, 2006).
Conversations between the general counsel for plaintiff and staff at the Securities and Exchange Commission were not relevant to defendant's counterclaim against plaintiff and thus did not have to be disclosed for lack of privilege.
Conversations between the general counsel for plaintiff and staff at the Securities and Exchange Commission were not relevant to defendant's counterclaim against plaintiff and thus did not have to be disclosed for lack of privilege.
Municipal Revenue Services v. Xspand, Inc., 2006 U.S. Dist. LEXIS 70940 (M.D. Pa. Sept. 28, 2006).
Email with an attorney retained to provide networking services for a company seeking outsourcing business with governmental entities regarding tax liens was not privileged because the attorney was not retained to provide legal advice.
Email with an attorney retained to provide networking services for a company seeking outsourcing business with governmental entities regarding tax liens was not privileged because the attorney was not retained to provide legal advice.
Gilliland v. Geramita, 2006 U.S. Dist. LEXIS 65546 (W.D. Pa. Sept. 14, 2006).
Attorney-client documents withheld on behalf of companies that ceased operations were ordered produced. The court held that "there should be a presumption that the attorney-client privilege is no longer viable after a corporate entity ceases to function, unless a party seeking to establish the privilege demonstrates authority and good cause."
Attorney-client documents withheld on behalf of companies that ceased operations were ordered produced. The court held that "there should be a presumption that the attorney-client privilege is no longer viable after a corporate entity ceases to function, unless a party seeking to establish the privilege demonstrates authority and good cause."
National Economic Research Associates, Inc. v. Evans, 2006 Mass. Super. LEXIS 371 (Mass. Super. Ct. Aug. 3, 2006).
A former employee's email to and from his attorney remained privileged despite the snapshots of the email left on the hard drive of his employer's laptop used to access the email through a private email service provider.
A former employee's email to and from his attorney remained privileged despite the snapshots of the email left on the hard drive of his employer's laptop used to access the email through a private email service provider.
Delta Financial Corp. v. Morrison,, 2006 N.Y. Misc. LEXIS 2052 (N.Y. Sup. Ct. Jul. 26, 2006).
Email communications between a company's chief financial officer and company auditors seeking tax advice were not privileged despite company counsel being included in the communications because the auditors were not being asked to "translate" accounting data for the attorneys. The communications were not solely between counsel and a client concerning primarily legal issues.
Email communications between a company's chief financial officer and company auditors seeking tax advice were not privileged despite company counsel being included in the communications because the auditors were not being asked to "translate" accounting data for the attorneys. The communications were not solely between counsel and a client concerning primarily legal issues.
Trudeau v. New York State Consumer Protection Board, 2006 U.S. Dist. LEXIS 61901 (N.D.N.Y. Jul. 21, 2006).
Plaintiffs who made public an inadvertently produced government agency document with obvious attorney-client or deliberative process content were admonished. However, the agency waived any right to confidentiality of the document due to carelessness in handling four copies of the document produced to plaintiffs.
Plaintiffs who made public an inadvertently produced government agency document with obvious attorney-client or deliberative process content were admonished. However, the agency waived any right to confidentiality of the document due to carelessness in handling four copies of the document produced to plaintiffs.
Hernandez v. Esso Std. Oil Co., 2006 U.S. Dist. LEXIS 47738 (D. P.R. Jul. 11, 2006).
Although defendant claimed an electronic file of privileged documents was inadvertently disclosed to plaintiffs due to an errant mouse click, the court utilizing the "pragmatic approach (middle test) held privilege had been waived.
Although defendant claimed an electronic file of privileged documents was inadvertently disclosed to plaintiffs due to an errant mouse click, the court utilizing the "pragmatic approach (middle test) held privilege had been waived.
Lawrence E. Jaffe Pension Plan v. Household International, Inc., 2006 U.S. Dist. LEXIS 49319 (N.D. Ill. Jul. 6, 2006).
Attorney opinion letters inadvertently produced by a company's outside auditor were ordered returned to the company. Court noted that parties had stipulated to the return of inadvertently produced documents in the case management order.
Attorney opinion letters inadvertently produced by a company's outside auditor were ordered returned to the company. Court noted that parties had stipulated to the return of inadvertently produced documents in the case management order.
Williams v. Sprint/United Management Co.,, 2006 U.S. Dist. LEXIS 47853 (D. Kan. Jul. 1, 2006).
Inadvertently produced spreadsheets categorizing employees to be retained and employees to be terminated were ordered returned to defendant because the spreadsheets had been prepared at the direction of defendant's attorneys and were protected by the attorney-client privilege.
Inadvertently produced spreadsheets categorizing employees to be retained and employees to be terminated were ordered returned to defendant because the spreadsheets had been prepared at the direction of defendant's attorneys and were protected by the attorney-client privilege.
In re Qwest Communications International Inc. Securities Litigation, 2006 U.S. App. LEXIS 14937 (10th Cir. Jun. 19, 2006).
A doctrine of "selective waiver" or "limited waiver" was rejected by the court in affirming that privileged documents released by a company to the SEC and the Department of Justice had lost their privileged status and had to be disclosed to plaintiffs in a private action against the company.
A doctrine of "selective waiver" or "limited waiver" was rejected by the court in affirming that privileged documents released by a company to the SEC and the Department of Justice had lost their privileged status and had to be disclosed to plaintiffs in a private action against the company.
Crossroads Systems (Texas), Inc. v. DOT Hill Systems Corp., 2006 U.S. Dist. LEXIS 36181 (W.D. Tex. May 31, 2006).
Failure of counsel to object to use of an inadvertently-produced privileged document at a deposition waived the attorney-client privilege as to that document and all communications related to it.
Failure of counsel to object to use of an inadvertently-produced privileged document at a deposition waived the attorney-client privilege as to that document and all communications related to it.
Vioxx Products Liability Litigation Steering Committee v. Merck and Co., Inc., 2006 U.S. App. LEXIS 27587 (5th Cir. May 25, 2006).
Inconsistent results from a district court's two-week review of 30,000 documents for privilege led a court of appeals to direct the district court to follow a privilege review process for in camera review of 2,000 documents in toto or by random sample with assistance provided by the party asserting privilege.
Inconsistent results from a district court's two-week review of 30,000 documents for privilege led a court of appeals to direct the district court to follow a privilege review process for in camera review of 2,000 documents in toto or by random sample with assistance provided by the party asserting privilege.
Banks v. Office of the Senate Sergeant-at-Arms, 2006 U.S. Dist. LEXIS 33912 (D.D.C. May 23, 2006).
Documents attached to letters, facsimiles, and email from the client to counsel were not privileged unless they were privileged when in the hands of the client. Transmission of the documents to counsel did not make the documents privileged.
Documents attached to letters, facsimiles, and email from the client to counsel were not privileged unless they were privileged when in the hands of the client. Transmission of the documents to counsel did not make the documents privileged.
Arch Coal, Inc. v. Federal Ins. Co., 2006 U.S. Dist. LEXIS 32016 (E.D. Mo. May 22, 2006).
Disclosure of privileged information by counsel for an insurance company when complete documents rather than redacted documents were mistakenly sent to opposing counsel was inadvertent, and privilege was not waived.
Disclosure of privileged information by counsel for an insurance company when complete documents rather than redacted documents were mistakenly sent to opposing counsel was inadvertent, and privilege was not waived.
Curto v. Medical World Communications, Inc., 2006 U.S. Dist. LEXIS 29387 (E.D.N.Y. May 15, 2006).
An employee who worked from a home office maintained some expectations of privacy, and her communications with her attorney that she deleted from a company laptop before returning the laptop to the company were protected by the attorney-client privilege.
An employee who worked from a home office maintained some expectations of privacy, and her communications with her attorney that she deleted from a company laptop before returning the laptop to the company were protected by the attorney-client privilege.
Delta Financial Corp. v. Morrison,, 2006 N.Y. Misc. LEXIS 1083 (N.Y. Sup. Ct. May 9, 2006).
Defendants' inadvertently disclosed email was protected by the attorney-client privilege, and it was ordered returned or destroyed. The email was noticed by defendants as an attachment to an affidavit in support of plaintiff's motion to amend its complaint filed a year after the email's inadvertent disclosure.
Defendants' inadvertently disclosed email was protected by the attorney-client privilege, and it was ordered returned or destroyed. The email was noticed by defendants as an attachment to an affidavit in support of plaintiff's motion to amend its complaint filed a year after the email's inadvertent disclosure.
Kaufman v. SunGard Investment Systems, 2006 U.S. Dist. LEXIS 28149 (D.N.J. May 9, 2006).
Attorney-client privilege was waived as to email between an employee and her attorneys that was deleted from her laptop but then recovered by her employer when the laptop was returned. The email had been sent from and received on the employer's email system, and the employer had a company policy regarding use of company property that provided a right of access to and inspection of all electronic systems.
Attorney-client privilege was waived as to email between an employee and her attorneys that was deleted from her laptop but then recovered by her employer when the laptop was returned. The email had been sent from and received on the employer's email system, and the employer had a company policy regarding use of company property that provided a right of access to and inspection of all electronic systems.
In re Grand Jury Investigation, 2006 U.S. App. LEXIS 10041 (3rd Cir. Apr. 21, 2006).
An attorney was required to provide his notes and testify before a grand jury about his conversation with his client about a government subpoena for documents. The crime-fraud exception to the attorney-client privilege applied because at the time of the conversation, the client apparently was taking part in obstruction of justice through deletion of email.
An attorney was required to provide his notes and testify before a grand jury about his conversation with his client about a government subpoena for documents. The crime-fraud exception to the attorney-client privilege applied because at the time of the conversation, the client apparently was taking part in obstruction of justice through deletion of email.
Urban Box Office Network, Inc. v. Interfase Management, 2006 U.S. Dist. LEXIS 20648 (S.D.N.Y. Apr. 18, 2006).
Email from an attorney making the same sort of suggestions as a financial advisor during negotiation of a stock purchase agreement was not privileged because it did not involve legal advice.
Email from an attorney making the same sort of suggestions as a financial advisor during negotiation of a stock purchase agreement was not privileged because it did not involve legal advice.
In re Sulfuric Acid Antitrust Litigation, 2006 U.S. Dist. LEXIS 20 (N.D. Ill. Apr. 10, 2006).
Inadvertently-produced email that the court determined did not reflect client confidences or legal advice was not privileged and did not have to be returned to defendants. However, email that indicated legal advice was sought and obtained and email among joint venturers concerning a legal matter in which the joint venturers had a common interest was privileged and subject to redaction despite its inadvertent production.
Inadvertently-produced email that the court determined did not reflect client confidences or legal advice was not privileged and did not have to be returned to defendants. However, email that indicated legal advice was sought and obtained and email among joint venturers concerning a legal matter in which the joint venturers had a common interest was privileged and subject to redaction despite its inadvertent production.
United Investors Life Ins. Co. v. Nationwide Life Ins. Co., 2006 U.S. Dist. LEXIS 4640 (N.D. Miss. Feb. 6, 2006).
Although the court declined plaintiff's request for an in camera review of potentially hundreds of documents, including email, for proper assertion of privilege by defendants, the court ordered defendants "to revise their privilege log entries to include each element of a claimed privilege or protection so that the court and the plaintiff are able to 'test the merits' within the four corners of the privilege log itself."
Although the court declined plaintiff's request for an in camera review of potentially hundreds of documents, including email, for proper assertion of privilege by defendants, the court ordered defendants "to revise their privilege log entries to include each element of a claimed privilege or protection so that the court and the plaintiff are able to 'test the merits' within the four corners of the privilege log itself."
Synthes Spine Co., L.P. v. Walden, 2005 U.S. Dist. LEXIS 34974 (E.D. Pa. Dec. 21, 2005).
Regardless of any privilege, a party must disclose all materials, including email, that a testifying expert for the party "generated, reviewed, reflected upon, read, and/or used in formulating his conclusions" even if the materials were rejected by the expert in reaching his opinions.
Regardless of any privilege, a party must disclose all materials, including email, that a testifying expert for the party "generated, reviewed, reflected upon, read, and/or used in formulating his conclusions" even if the materials were rejected by the expert in reaching his opinions.
Tri-State Hospital Supply Corp. v. United States, 2005 U.S. Dist. LEXIS 33156 (D.D.C. Dec. 16, 2005).
An importer of hospital supplies into the United States filed a malicious prosecution suit against the government after winning a collection action by the government. Tri-State was entitled to production of communications, including some email communications, reflecting the factual and legal bases for the government's collection action. The information in the government documents was central to determination of the importer's allegations, and no other source for the information was available.
An importer of hospital supplies into the United States filed a malicious prosecution suit against the government after winning a collection action by the government. Tri-State was entitled to production of communications, including some email communications, reflecting the factual and legal bases for the government's collection action. The information in the government documents was central to determination of the importer's allegations, and no other source for the information was available.
Reino De Espana v. American Bureau of Shipping, 2005 U.S. Dist. LEXIS 33334 (S.D.N.Y. Dec. 14, 2005).
Return of email and handwritten notes that a party claimed were privileged but inadvertently produced was denied by a magistrate judge after an in camera review of the documents led him to conclude the documents contained business rather than legal advice. The court further ruled that any privilege had been waived through the party's failure to take adequate safeguards against inadvertent production.
Return of email and handwritten notes that a party claimed were privileged but inadvertently produced was denied by a magistrate judge after an in camera review of the documents led him to conclude the documents contained business rather than legal advice. The court further ruled that any privilege had been waived through the party's failure to take adequate safeguards against inadvertent production.
MSF Holding, Ltd. v. Fiduciary Trust Co. Int'l, 2005 U.S. Dist. LEXIS 34171 (S.D.N.Y. Dec. 7, 2005).
Email from an attorney serving as a Senior Vice President and Deputy Corporate Counsel was not protected by attorney-client privilege because the attorney did not allude to a legal principle in the documents or engage in legal analysis. Also, any privilege for the email was waived through inadvertent production of the two emails in question as part of a document production of only 202 pages.
Email from an attorney serving as a Senior Vice President and Deputy Corporate Counsel was not protected by attorney-client privilege because the attorney did not allude to a legal principle in the documents or engage in legal analysis. Also, any privilege for the email was waived through inadvertent production of the two emails in question as part of a document production of only 202 pages.
In re Natural Gas Commodities Litigation,, 2005 U.S. Dist. LEXIS 31278 (S.D.N.Y. Dec. 2, 2005).
In an action by natural gas futures traders against energy companies, the court denied a motion to compel production of privileged documents disclosed by the energy companies to the government. Voluntary production of the documents pursuant to an explicit non-waiver agreement did not waive privilege.
In an action by natural gas futures traders against energy companies, the court denied a motion to compel production of privileged documents disclosed by the energy companies to the government. Voluntary production of the documents pursuant to an explicit non-waiver agreement did not waive privilege.
Hopson v. Mayor, 2005 U.S. Dist. LEXIS 29882 (D.Md. Nov. 22, 2005).
Claw-back agreements among parties engaged in e-discovery should be used with caution, according to a magistrate judge, because enforcement of such agreements providing for non-waiver of privilege for inadvertently produced documents may vary among federal and state jurisdictions. The court recommended that such agreements should be incorporated into court orders.
Claw-back agreements among parties engaged in e-discovery should be used with caution, according to a magistrate judge, because enforcement of such agreements providing for non-waiver of privilege for inadvertently produced documents may vary among federal and state jurisdictions. The court recommended that such agreements should be incorporated into court orders.
Atronic International GMBH v. SAI Semispecialists of America, Inc., 2005 U.S. Dist. LEXIS 24585 (E.D.N.Y. Oct. 18, 2005).
Inadvertent disclosure of documents containing legal advice was a waiver of attorney-client privilege under New York law.
Inadvertent disclosure of documents containing legal advice was a waiver of attorney-client privilege under New York law.
Klein v. State, 2005 ML 2437, 2005 Mont. Dist. LEXIS 1394 (1st Jud. Dist. Ct. Oct. 7, 2005).
During discovery in a police official's negligence action against the State following an arbitrator's award of back pay and benefits to the official, the official was ordered to produce email with her union representative that had been copied to her attorneys. The email might be inadmissible at trial due to a "union communication privilege" but there was no authority for the proposition that such a privilege would protect the email from disclosure during discovery in a civil action.
During discovery in a police official's negligence action against the State following an arbitrator's award of back pay and benefits to the official, the official was ordered to produce email with her union representative that had been copied to her attorneys. The email might be inadmissible at trial due to a "union communication privilege" but there was no authority for the proposition that such a privilege would protect the email from disclosure during discovery in a civil action.
In re Universal Service Fund Telephone Billing Practices Litigation, 2005 U.S. Dist. LEXIS 39804 (D. Kan. Jul. 26, 2005).
Separate messages within an email strand should be separated from one another when evaluating a privilege claim, despite the fact that listing each message on a privilege log is a laborious task for counsel that adds considerable expense for clients.
Separate messages within an email strand should be separated from one another when evaluating a privilege claim, despite the fact that listing each message on a privilege log is a laborious task for counsel that adds considerable expense for clients.
The People v. Weibin Jiang, 2005 Cal. App. LEXIS 1095 (Cal. Ct. App. June 16, 2005).
Password-protected documents stored by defendant on a company computer in a folder labeled "Attorney" were subject to the attorney-client privilege and were protected from disclosure by the company to a prosecutor.
Password-protected documents stored by defendant on a company computer in a folder labeled "Attorney" were subject to the attorney-client privilege and were protected from disclosure by the company to a prosecutor.
American National Bank and Trust Company of Chicago v. Equitable Life Assurance Society of the United States, 2005 U.S. App. LEXIS 7696 (7th Cir. May 4, 2005).
The striking of a party's entire privilege list due to five non-privileged documents within the list of over four hundred documents was an abuse of discretion, and privileged documents required to be disclosed were ordered returned.
The striking of a party's entire privilege list due to five non-privileged documents within the list of over four hundred documents was an abuse of discretion, and privileged documents required to be disclosed were ordered returned.
Streamline Capital, L.L.C. v. Hartford Casualty Insurance Company, 2005 U.S. Dist. LEXIS 468 (S.D.N.Y. January 11, 2005).
A minor delay in serving a privilege log did not warrant imposing an across-the-board waiver of the attorney-client privilege. Because a limited liability company did not show that an individual acted as its agent when writing or receiving email, that mail was not privileged.
A minor delay in serving a privilege log did not warrant imposing an across-the-board waiver of the attorney-client privilege. Because a limited liability company did not show that an individual acted as its agent when writing or receiving email, that mail was not privileged.
Collaboration Properties, Inc. v. Polycom, Inc., 2004 U.S. Dist. LEXIS 20709 (N.D. Cal. Oct. 13, 2004).
In a patent infringement case, court-ordered disclosure of non-redacted email to opposing litigation counsel for litigation counsel's eyes only could not be considered a waiver of privilege so far as third parties were concerned.
In a patent infringement case, court-ordered disclosure of non-redacted email to opposing litigation counsel for litigation counsel's eyes only could not be considered a waiver of privilege so far as third parties were concerned.
Fox Indus. v. Gurovich, 2004 U.S. Dist. LEXIS 16778 (E.D.N.Y. August 25, 2004).
A forensic computer expert was properly ordered to examine defendant's computer, although defendant's counsel could be present at the examination and identify privileged documents.
A forensic computer expert was properly ordered to examine defendant's computer, although defendant's counsel could be present at the examination and identify privileged documents.
Jasmine Networks, Inc. v. Marvell Semiconductor, Inc., 2004 Cal. App. LEXIS 476 (Cal. App. Apr. 8, 2004), petition for review granted, 2004 Cal. LEXIS 6632 (Cal., July 21, 2004).
The court reversed an injunction restraining the use or disclosure of a transcript of a conversation among an officer and in-house counsel of an acquiring company inadvertently left on the target company's voicemail system. Participation of non-attorney employees in the disclosure by the acquiring company waived attorney-client privilege.
The court reversed an injunction restraining the use or disclosure of a transcript of a conversation among an officer and in-house counsel of an acquiring company inadvertently left on the target company's voicemail system. Participation of non-attorney employees in the disclosure by the acquiring company waived attorney-client privilege.
Hollingsworth v. Time Warner Cable, 2004 Ohio App. LEXIS 2810 (Ohio App., June 18, 2004).
A trial court abused its discretion by ordering a litigant to return a voluntarily-produced email claimed by the defendant to be protected by the attorney-client privilege and by not ordering production of emails and other documents reflecting related communications with the defendant's legal department.
A trial court abused its discretion by ordering a litigant to return a voluntarily-produced email claimed by the defendant to be protected by the attorney-client privilege and by not ordering production of emails and other documents reflecting related communications with the defendant's legal department.
In re Lernout & Hauspie Securities Litigation, 2004 U.S. Dist. LEXIS 9948 (D. Mass. May 27, 2004).
An accounting firm's claim that its disclosure in a class action of a manager's email to an in-house lawyer was inadvertent was rejected, and related privileged emails were ordered disclosed to class counsel.
An accounting firm's claim that its disclosure in a class action of a manager's email to an in-house lawyer was inadvertent was rejected, and related privileged emails were ordered disclosed to class counsel.
In re Spring Ford Industries, Inc., 2004 Bankr. LEXIS 788 (Bankr. E.D. Pa. May 20, 2004).
Because an email from an attorney did not express a legal opinion, its disclosure in discovery did not waive attorney-client privilege as to other emails from the attorney.
Because an email from an attorney did not express a legal opinion, its disclosure in discovery did not waive attorney-client privilege as to other emails from the attorney.
Heavin v. Owens-Corning Fiberglass, 2004 U.S. Dist. LEXIS 2265 (D. Kan. Feb. 3, 2004).
Waiver of attorney-client privilege was too harsh a sanction for defendant's late filing of a privilege log given the absence of evidence of bad faith by defendant. However, defendant was ordered to file an amended log with detailed information that would allow meaningful review of defendant's log by plaintiff and the court.
Waiver of attorney-client privilege was too harsh a sanction for defendant's late filing of a privilege log given the absence of evidence of bad faith by defendant. However, defendant was ordered to file an amended log with detailed information that would allow meaningful review of defendant's log by plaintiff and the court.
United States v. Stewart, 2003 U.S. Dist. LEXIS 18502 (S.D.N.Y. Oct. 20, 2003).
Email forwarded to defendant's daughter protected by work product privilege.
Email forwarded to defendant's daughter protected by work product privilege.
Turner v. Brave River Solutions, Inc., 2003 DNH 104, 2003 U.S. Dist. LEXIS 10298 (D. N.H. Jun. 18, 2003).
Defendant prevented from using attorney-client privileged emails inadvertently disclosed by plaintiff's attorney after the close of discovery.
Defendant prevented from using attorney-client privileged emails inadvertently disclosed by plaintiff's attorney after the close of discovery.
RLS Assocs., LLC v. United Bank of Kuwait, PLC, 2003 U.S. Dist. LEXIS 4539 (S.D.N.Y. Mar. 24, 2003).
Emails not privileged under common interest rule; context of email messages can affect determination of privilege.
Emails not privileged under common interest rule; context of email messages can affect determination of privilege.
United States v. KPMG LLP, 2002 U.S. Dist. LEXIS 24830 (D.D.C. Dec. 20, 2002).
An accounting firm was ordered to turn over its entire privilege log and copies of logged documents to a Special Master for examination following the court's determination that only four of thirty randomly selected log entries and corresponding documents were completely supportable as privileged.
An accounting firm was ordered to turn over its entire privilege log and copies of logged documents to a Special Master for examination following the court's determination that only four of thirty randomly selected log entries and corresponding documents were completely supportable as privileged.
Koen Book Distributors v. Powell, Trachman, Logan, Carrle, Bowman & Lombardo, P.C., 2002 U.S. Dist. LEXIS 24743 (E.D. Pa. December 13, 2002).
Defendants were ordered to produce e-mails in legal malpractice suit because they were not protected by the work product doctrine nor the attorney-client privilege.
Defendants were ordered to produce e-mails in legal malpractice suit because they were not protected by the work product doctrine nor the attorney-client privilege.
Bovis Lend Lease, LMB, Inc. v. Seasons Contr. Corp., 2002 U.S. Dist. LEXIS 23322 (S.D.N.Y. Dec. 4, 2002).
Court considers scope of attorney-client privilege and work product doctrine as applied to email and other documents.
Court considers scope of attorney-client privilege and work product doctrine as applied to email and other documents.
eSpeed, Inc. v. Bd. of Trade of Chi., Inc., 2002 U.S. Dist. LEXIS 7918 (S.D.N.Y. Apr. 29, 2002).
Analyzing attorney-client privilege claim for emails and attachments.
Analyzing attorney-client privilege claim for emails and attachments.
United States Fid. & Guar. Co. v. Braspetro Oil Servs. Co., 2002 U.S. Dist. LEXIS 111, 53 Fed. R. Serv. 3d (Callaghan) 60 (S.D.N.Y. Jan. 4, 2002).
Providing discs to experts waived privilege for all documents on the discs.
Providing discs to experts waived privilege for all documents on the discs.
City of Reno v. Reno Police Protective Ass'n, 118 Nev. 889 (Nev. Sup. Ct. 2002).
"Documents transmitted by e-mail are protected by the attorney-client privilege," according to the Nevada Supreme Court. A policy governing use of computers providing that employees have no expectation of privacy in using the equipment was "meant to deprive expectations of privacy only as to personal use" of the equipment.
"Documents transmitted by e-mail are protected by the attorney-client privilege," according to the Nevada Supreme Court. A policy governing use of computers providing that employees have no expectation of privacy in using the equipment was "meant to deprive expectations of privacy only as to personal use" of the equipment.
United States v. Keystone Sanitation Company, 1994 U.S. Dist. LEXIS 20333 (M.D. Pa. October 19, 1994).
Defendants' inadvertent disclosure of e-mails during discovery waived any attorney-client privilege or work product protection.
Defendants' inadvertent disclosure of e-mails during discovery waived any attorney-client privilege or work product protection.
International Business Machines Corp. v. Comdisco, Inc., 1992 Del. Super. LEXIS 67 (Del. Super. Ct. March 11, 1992).
Court allowed production of a portion of an email message claimed to be privileged because a portion of the email message was intended to be disclosed to persons outside the circle of confidentiality.
Court allowed production of a portion of an email message claimed to be privileged because a portion of the email message was intended to be disclosed to persons outside the circle of confidentiality.
