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Attorney-Client Privilege (Continued)
Lawrence E. Jaffe Pension Plan v. Household International, Inc., 2006 U.S. Dist. LEXIS 49319 (N.D. Ill. Jul. 6, 2006).
As a result of a case management order in which both parties agreed to return inadvertently produced documents, certain documents that had been produced were ordered to be returned.
Williams v. Sprint/United Management Co., 2006 U.S. Dist. LEXIS 47853 (D. Kan. Jul. 1, 2006).
Documents that were created at the direction of Defendant's attorneys that were subsequently inadvertently produced were ordered to be returned due to attorney-client privilege.
In re Qwest Communications International Inc. Securities Litigation, 2006 U.S. App. LEXIS 14937 (10th Cir. Jun. 19, 2006).
"Selective waiver" was rejected by the court with regards to privileged documents being released by the company to the SEC and Department of Justice.
Crossroads Systems (Texas), Inc. v. DOT Hill Systems Corp., 2006 U.S. Dist. LEXIS 36181 (W.D. Tex. May 31, 2006).
Attorney-client privilege was waived regarding a specific document and related communications, as the attorney failed to object to the use of the inadvertently-produced privileged document during a deposition.
Vioxx Products Liability Litigation Steering Committee v. Merck and Co., Inc., 2006 U.S. App. LEXIS 27587 (5th Cir. May 25, 2006).
The appeals court found that the district court would perform a privilege review of 2,000 documents in camera.
Banks v. Office of the Senate Sergeant-at-Arms, 2006 U.S. Dist. LEXIS 33912 (D.D.C. May 23, 2006).
The court found that documents provided by client to counsel were not privileged unless they were already considered privileged prior to their transmission.
Arch Coal, Inc. v. Federal Ins. Co., 2006 U.S. Dist. LEXIS 32016 (E.D. Mo. May 22, 2006).
Whole documents rather than redacted documents were inadvertently produced to Plaintiff, however, the court found that these documents remained privileged.
Curto v. Medical World Communications, Inc., 2006 U.S. Dist. LEXIS 29387 (E.D.N.Y. May 15, 2006).
Plaintiff worked from home utilizing a company-owned laptop and, prior to returning this laptop, she deleted emails with her attorney. The court found that these emails were protected by attorney-client privilege.
Delta Financial Corp. v. Morrison, 2006 N.Y. Misc. LEXIS 1083 (N.Y. Sup. Ct. May 9, 2006).
Defendants inadvertently disclosed attorney-client privilege email, which they discovered when they identified such an email attached to an affidavit filed by Plaintiff, and the court found that privilege was not waived and these emails be returned or destroyed.
Kaufman v. SunGard Investment Systems, 2006 U.S. Dist. LEXIS 28149 (D.N.J. May 9, 2006).
Due to Defendant's policy stating that email communications were not confidential, the court found that attorney-client privilege was waived regarding emails between Plaintiff and her attorneys, as Plaintiff used her company computer and email system to send these communications.
In re Grand Jury Investigation, 2006 U.S. App. LEXIS 10041 (3rd Cir. Apr. 21, 2006).
The court found that the crime-fraud exception to the attorney-client privilege applied and an attorney was ordered to provide his notes and testify before a grand jury, as conversations took place regarding his client's obstruction of justice by deleting email.
Urban Box Office Network, Inc. v. Interfase Management, 2006 U.S. Dist. LEXIS 20648 (S.D.N.Y. Apr. 18, 2006).
Attorney-client privilege did not apply to emails in which the attorney provided no legal advice.
In re Sulfuric Acid Antitrust Litigation, 2006 U.S. Dist. LEXIS 20 (N.D. Ill. Apr. 10, 2006).
Attorney-client privilege did not apply to inadvertently produced emails in which no legal advice was provided, however, emails among joint venturers relating to the legal matter were found to be privileged and could be redacted.
United Investors Life Ins. Co. v. Nationwide Life Ins. Co., 2006 U.S. Dist. LEXIS 4640 (N.D. Miss. Feb. 6, 2006).
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," however, the court declined plaintiff's request for an in camera review of documents, including email, to discern privilege by defendants.
Synthes Spine Co., L.P. v. Walden, 2005 U.S. Dist. LEXIS 34974 (E.D. Pa. Dec. 21, 2005).
All materials, including email, "generated, reviewed, reflected upon, read, and/or used" by a testifying expert to formulate conclusions must be disclosed, regardless of privilege.
Tri-State Hospital Supply Corp. v. United States, 2005 U.S. Dist. LEXIS 33156 (D.D.C. Dec. 16, 2005).
Tri-State, an importer of hospital supplies, filed a malicious prosecution suit against the United States government and it was determined that Tri-State was entitled to production of communications, including some email communications as this was the only form the information was available in, that reflected the factual and legal bases for the government's original collection action against them.
Reino De Espana v. American Bureau of Shipping, 2005 U.S. Dist. LEXIS 33334 (S.D.N.Y. Dec. 14, 2005).
After an in camera review by a magistrate judge of documents, such as email and handwritten notes that the party claimed were privileged and mistakenly produced, the court ruled that the documents in question did not contain legal advice and also ruled that privilege was waived by the party as they did not take sufficient safeguards to prevent 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 who was also serving as a Senior Vice President and Deputy Corporate Counsel was not protected by attorney-client privilege as the documents in question did not refer to a legal principle or legal analysis and the privilege of the email was waived due to inadvertent production.
In re Natural Gas Commodities Litigation, "Natural Gas II", 2005 U.S. Dist. LEXIS 31278 (S.D.N.Y. Dec. 2, 2005).
The court denied a motion that attempted to compel production of privileged documents that were disclosed by a company and provided to the government and it was determined that the company did not waive privilege due to its voluntary production of the documents pursuant to an explicit non-waiver agreement.
Hopson v. Mayor, 2005 U.S. Dist. LEXIS 29882 (D.Md. Nov. 22, 2005).
A magistrate judge recommended that claw-back agreements should be incorporated into court orders, but used with caution when the parties are engaged in e-discovery, as it may be difficult to enforce such agreements to waive privilege for the inadvertent production documents due to the variance between federal and state jurisdictions.
Atronic International GMBH v. SAI Semispecialists of America, Inc., 2005 U.S. Dist. LEXIS 24585 (E.D.N.Y. Oct. 18, 2005).
Under New York law, attorney-client privilege was waived when documents containing legal advice were inadvertently disclosed.
Klein v. State, 2005 ML 2437, 2005 Mont. Dist. LEXIS 1394 (1st Jud. Dist. Ct. Oct. 7, 2005).
During the discovery phase of a civil action, a police official was ordered to produce email between herself and her union representative when it had been copied to her attorneys. Although it was possible that such email would be considered inadmissible at trial, as it may have constituted a "union communication privilege", there was no authority for the proposition that such a privilege would protect it from disclosure during discovery.
In re Universal Service Fund Telephone Billing Practices Litigation, 2005 U.S. Dist. LEXIS 39804 (D. Kan. Jul. 26, 2005).
When a privilege claim is being assessed, an email strand containing several emails must be separated from one another, regardless of whether this task is laborious or expensive.
The People v. Weibin Jiang, 2005 Cal. App. LEXIS 1095 (Cal. Ct. App. June 16, 2005).
Defendant saved password protected documents on his company computer in a folder titled "Attorney" and those documents were subject to attorney-client privilege.
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 occurred when serving a privilege log, however, it was determined that this did not warrant a comprehensive waiver of attorney-client privilege. In addition, as the LLC did not demonstrate that a specific individual was acting as an agent of the company when writing and receiving email, it was not considered privileged.
Collaboration Properties, Inc. v. Polycom, Inc., 2004 U.S. Dist. LEXIS 20709 (N.D. Cal. Oct. 13, 2004).
The court ordered that email that was not redacted must be provided to opposing counsel for only the attorneys to view, but could not be considered a waiver of privilege with regards to third parties.
Fox Indus. v. Gurovich, 2004 U.S. Dist. LEXIS 16778 (E.D.N.Y. August 25, 2004).
A computer forensic expert was provided access to defendant's computer system, however, defendant's attorney was permitted to be present during the expert's analysis of the computer system to identify privileged documents.
Hollingsworth v. Time Warner Cable, 2004 Ohio App. LEXIS 2810 (Ohio App., June 18, 2004).
A trial court ordered a litigant to return an email that was produced voluntarily but claimed by the defendant to be protected by the attorney-client privilege. However, by not ordering production of emails and other documents reflecting related communications with the defendant's legal department, it was determined that the trial court abused its discretion.
In re Lernout & Hauspie Securities Litigation, 2004 U.S. Dist. LEXIS 9948 (D. Mass. May 27, 2004).
The court rejected a party's claim that its disclosure of a manager's email to an in-house attorney was inadvertent and ordered that related privileged emails be disclosed to the class action counsel.
In re Spring Ford Industries, Inc., 2004 Bankr. LEXIS 788 (Bankr. E.D. Pa. May 20, 2004).
The disclosure of an email during discovery that was sent from an attorney but did not discuss a legal opinion did not waive attorney-client privilege.
United States v. Stewart, 2003 U.S. Dist. LEXIS 18502 (S.D.N.Y. Oct. 20, 2003).
Defendant forwarded an email message written to her attorney to her daughter that described her recollection of events surrounding her litigation, possibly waiving her attorney-client privilege in the process. However, the email message was protected as a work product doctrine as it had been created in response to the defendant's attorney's request for information.
Turner v. Brave River Solutions, Inc. 2003 DNH 104, 2003 U.S. Dist. LEXIS 10298 (D. N.H. Jun. 18, 2003).
Plaintiff's attorney permitted defendant to review discovery materials after the actual close of discovery, at which time the defendant viewed email messages contained in a file entitled "work product w/held from opposing counsel." Defendant then hand-copied these email messages that defendant's attorneys utilized in a motion for summary judgment. However, the court determined that all references to the privileged email messages must be stricken from the defendant's motion and that all contents of the files must be returned to the plaintiff's attorney.
RLS Assocs., LLC v. United Bank of Kuwait, PLC, 2003 U.S. Dist. LEXIS 4539 (S.D.N.Y. Mar. 24, 2003).
Plaintiff alleged defendant had failed to pay commissions under the terms of a written agreement. It was determined that defendant did not establish that, under the common interest rule, email messages were privileged information.
St. Paul Fire & Marine Ins. Co. v. SSA Gulf Terminals, Inc., 2002 U.S. Dist. LEXIS 11776 (E.D. La. June 10, 2002).
Plaintiff moved for a protective order claiming that email messages requested by defendant were work product. The court reviewed these email messages and other documents in camera and found that many of them were protected as work product as they contained legal strategies.
eSpeed, Inc. v. Bd. of Trade of Chi., Inc., 2002 U.S. Dist. LEXIS 7918 (S.D.N.Y. Apr. 29, 2002).
Cantor Fitzgerald, a third party and partial owner of Plaintiff, alleged that attorney-client privilege applied to email messages and their associated attachments sent to an internal Cantor Fitzgerald employee by outside counsel. Each email message and attachment was reviewed in camera by the court, which found that the messages and documents that did not possess client confidences were not privileged.
United States Fid. & Guaranty 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).
A discovery dispute in which Defendant alleged that attorney-client privilege applied to 60 electronic discs that had been supplied to defendant's experts. Plaintiffs asserted that supplying the discs to the experts had ceased any level of confidentiality and the court ordered the defendant to produce all information that had been provided to their experts.
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