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Federal Rule of Evidence 502
Amobi v. District of Columbia Department of Corrections, 2009 U.S. Dist. LEXIS 114270 (D.D.C. Dec. 8, 2009).
Although new Fed. R. Evid. 502 overrode the District of Columbia Circuit's strict rule of waiver of privilege for inadvertent production of privileged documents, the party asserting privilege still had the burden of showing there had been no waiver.
Although new Fed. R. Evid. 502 overrode the District of Columbia Circuit's strict rule of waiver of privilege for inadvertent production of privileged documents, the party asserting privilege still had the burden of showing there had been no waiver.
Coburn Group, LLC v. Whitecap Advisors LLC, 2009 U.S. Dist. LEXIS 69188 (N.D. Ill. Aug. 7, 2009).
An email containing work product was inadvertently disclosed within the meaning of Fed. R. Evid. 502(b)(1) because its inclusion in a document production simply was a mistake. Return of the email was ordered because use of experienced paralegals to review documents was reasonable, and counsel promptly sought return of the document once he learned it had been produced inadvertently.
An email containing work product was inadvertently disclosed within the meaning of Fed. R. Evid. 502(b)(1) because its inclusion in a document production simply was a mistake. Return of the email was ordered because use of experienced paralegals to review documents was reasonable, and counsel promptly sought return of the document once he learned it had been produced inadvertently.
Confederated Tribes of the Chehalis Reservation v. Thurston County Board of Equalization, 2009 U.S. Dist. LEXIS 105457 (W.D. Wash. Nov. 12, 2009).
Defendant's intentional disclosure of a privileged email did not result in a blanket waiver of privilege under Fed. R. Evid. 502(a) for all documents on defendant's privilege log because plaintiff did not show that the documents listed on the log related to the same subject matter as the disclosed email.
Defendant's intentional disclosure of a privileged email did not result in a blanket waiver of privilege under Fed. R. Evid. 502(a) for all documents on defendant's privilege log because plaintiff did not show that the documents listed on the log related to the same subject matter as the disclosed email.
Convertino v. United States Department of Justice, 2009 U.S. Dist. LEXIS 115050 (D.D.C. Dec. 10, 2009).
Email of a Justice Department attorney with his private attorney using a Department of Justice email address remained protected by attorney-client privilege pursuant to Fed. R. Evid. 502(b) even though the Department saved the email but did not claim privilege over it. The Department attorney reasonably believed his email would remain confidential, according to the court, and he took steps to limit disclosure of the email.
Email of a Justice Department attorney with his private attorney using a Department of Justice email address remained protected by attorney-client privilege pursuant to Fed. R. Evid. 502(b) even though the Department saved the email but did not claim privilege over it. The Department attorney reasonably believed his email would remain confidential, according to the court, and he took steps to limit disclosure of the email.
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.
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.
Mt. Hawley Ins. Co. v. Felman Production, Inc., 2010 U.S. Dist. LEXIS 49083 (S.D. W. Va. May 18, 2010).
Failure of a party and its counsel "to perform critical quality control sampling to determine whether their production was appropriate and neither over-inclusive nor under-inclusive" resulted in waiver of attorney-client privilege for a key email that was included inadvertently within a 346-gigabyte production. The court ordered the party to provide other privileged documents for in camera review by the court to determine whether the crime-fraud exception to attorney-client privilege applied to those documents.
Failure of a party and its counsel "to perform critical quality control sampling to determine whether their production was appropriate and neither over-inclusive nor under-inclusive" resulted in waiver of attorney-client privilege for a key email that was included inadvertently within a 346-gigabyte production. The court ordered the party to provide other privileged documents for in camera review by the court to determine whether the crime-fraud exception to attorney-client privilege applied to those documents.
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.
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.
Spieker v. Quest Cherokee, LLC, “Spieker II”, 2009 U.S. Dist. LEXIS 62073 (D. Kan. July 21, 2009).
The court rejected defendant's argument that the cost of production of electronically stored information would be even greater if defendant used its inexperienced in-house information technology staff rather than an outside vendor to conduct production. According to the court, no court had held that a party was excused from discovery because its staff had not previously searched for or produced discovery materials.
The court rejected defendant's argument that the cost of production of electronically stored information would be even greater if defendant used its inexperienced in-house information technology staff rather than an outside vendor to conduct production. According to the court, no court had held that a party was excused from discovery because its staff had not previously searched for or produced discovery materials.
