Employee/Employer Implicated: Employees and Employers Alike
e-Lesson Learned: The employee in this case had a reasonable expectation of privacy in personal web-based emails between the employee and her lawyer, sent and received (during work hours) using the employer’s computer and IT systems.
This is the second video by Joscelyn from the eLessons Learned series on Stengart, dealing with the March 30 New Jersey Supreme Court decision favoring privacy over waiver of attorney-client privilege.
Citation: Preferred Care Partners Holding v. Humana, 2009 WL 982460 (S.D. Fla. April 9, 2009)
Employee/Employer Implicated: Outside Counsel
e-Lesson Learned: Outside counsel should advise all party employees to conduct a thorough search of their computers so that relevant documents will be discovered and produced before the end of the discovery period.
The old adage: “measure twice, cut once” applies to carpentry and very well should apply to the legal profession. Both a carpenter and an attorney will save time and money by adhering to this maxim.
Take for example Preferred Care Partners Holding v. Humana. In that case, Humana produced an additional 10,000 documents two months after the completion of discovery, and suffered sanctions because of it. Humana discovered the existence of these newly produced documents during a deposition of an employee who found residual copies of documents that he believed had been deleted from his computer. As a consequence, Humana conducted a subsequent search which led to the discovery of a vast number of residual files on other computers. Because of the need to sort through all of the documents to determine which ones were responsive and privileged, the files were not produced until well after discovery concluded, and only a short time before trial.
Citation: U.S. v. Sensient Colors, Inc., 2009 WL 2905474 (D. N.J. Sept. 9, 2009).
Employee/Employer Implicated: Outside Counsel
e-Lesson Learned: To avoid waiver of attorney-client and work-product protections when producing significant amounts of data, it’s important for producing attorneys to (1) establish reasonable document review methods geared towards minimizing the amount of inadvertently produced privileged documents, and (2) conduct a prompt re-review of all produced documents upon notification that privileged documents may have been inadvertently produced.
The document reviewing attorney is charged with an unenviable task: Review thousands of documents to ensure that no privileged information is produced to opposing counsel. Given the fact that document productions may consist of thousands or even millions of pages of documents, it is not surprising that privileged documents will slip by the watchful, often weary, eye of reviewing attorneys – it is inevitable.
Not to worry, the Federal Rules of Evidence are sympathetic to those tired eyes. Inadvertently produced privileged documents do not automatically lose their privilege protection. However, it is important to note that although FRE 502 allows some wiggle room for error, the attorney for the producing party must be careful. Failing to take reasonable steps to prevent inadvertent disclosure, or failing to promptly identify privileged documents that had been produced mistakenly can result in the waiver of highly privileged documents, oftentimes a deathblow to an otherwise winnable case.
Citation: SEC v. Badian, 2009 U.S. Dist. LEXIS 9204 (S.D.N.Y. January 26, 2009)
Employee/Employer Implicated: Non-party and outside counsel for non-party
e-Lesson Learned: You’ve got to be smart when producing documents. Implement effective safeguards to protect inadvertent disclosures in order to prevent the possibility of waiver of privilege.
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This case just goes to show you the importance of effective counsel. In the case, Rhino Advisors, Inc., a non-party, sought in camera review of 260 documents out of 67,000 documents that it had produced to the SEC in August 2003. Rhino wanted to “claw back” these documents, claiming they were privileged and inadvertently produced.
The court analyzed Rhino’s claim using the four factors set forth in Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., and concluded that based Rhino had waived any privilege that it may have asserted. Before discussing the court’s analysis, a brief rendition of the facts is required. Continue reading »
e-Lesson Learned: When a motion for expedited discovery is granted by the court, it means just that: expedite the process! A court will have little sympathy for a noncompliant Defendant who is banking on a deadline extension.
When faced with an expedited discovery order from the court, always be certain as to what the deadline is and what information is to be produced by that deadline, as well as the procedures for obtaining the desired information. When the court grants a plaintiff’s motion for expedited discovery, the word “expedited” should be sufficiently clear as to put the defense on notice that they cannot continue to drag their feet. When the discovery deadline arrives, the court will not feel compelled to protect privileged material from the eyes of the opposing party based solely on the notion that there was confusion between the parties about what the court had ordered. Obviously, such confusion should be rectified prior to the deadline.
This case dealt with the Plaintiff’s seeking of two different types of e-discovery to be produced by the Defendants- (1) a keyword search of KW servers, and (2) the imaging of KW’s portable computers. Continue reading »
This case arose from allegations of securities fraud against Collins & Aikman Corp made by the SEC. Notably, during the course of discovery, several disputes arose regarding the SEC’s production of documents and its failure to perform sufficiently thorough searches for the requested information.
First, the SEC produced massive amounts of documents. Specifically, the SEC produced 1.7 million documents (approximately 10.6 million pages), in response to defendant’s request for documents. Moreover, these documents were in fifty-four separate categories maintained in different databases and containing different metadata protocols. Defendants were none too pleased about this and argued that the SEC failed to identify documents in response to its request for documents supporting particular factual allegations and instead dumped an unreasonable volume of documents.
In response, the SEC claimed that it did not “maintain a document collection relating specifically to the subject addressed” and thus its production reflected the documents as they were “kept in the regular course of business.”
However, during the course of discovery, information surfaced about the existence of approximately 175 file folders maintained by the SEC concerning the specific factual allegations of the complaint and maintained in the regular course of agency business. Continue reading »
Citation: Kenneth A. Mendelson, What Jefferson Taught Us, LEGALTIMES, Aug. 20, 2007, at 34.
Employee/Employer Implicated: Government Official
e-Lesson Learned: Setting up forensic protocols and discovery procedures prior to litigation can have a significant impact, not only on the costs of the case, but on the quick resolution of the case as well.
The case of Rep. William Jefferson out of Louisiana may have confused people when it first came out in July 2006. The D.C. Court of Appeals held that the FBI overreached its authority by seizing legislative data. However, the court found that the copying of computer hard drives and other electronic media was “constitutionally permissible” because Jefferson had a chance to show that the electronic information that was obtained from his congressional office computer was connected to legislative work. If Jefferson was able to show this connection, the information was subject to constitutional protection.
Some of you more astute individuals may have already identified the snafu with which the FBI now has to deal. This ruling basically allowed the FBI to seize electronic information, but did not permit its review until Jefferson had the chance to look at it to determine whether or not it was legislative in nature. But how can Jefferson review information after it has been seized? Continue reading »
Employee/Employer Implicated: George G. Grigel, and other attorneys in charge of Relion’s patent case at Wells St. John
e-Lesson Learned: Privilege holding parties who inadvertently turn over privileged documents must pursue all reasonable means possible to preserve the confidentiality of the documents, otherwise, attorney-client privilege will be deemed waived by the court. This means if you are given three golden opportunities to review the documents and you still don’t notice the mistake until the other party physically writes you a letter about the documents, you probably waived your privilege.
Four months after turning over 40 feet of shelf space worth of documents to Hydra, Relion asks the Court for a protective order over two e-mails of the documents produced and to compel Hydra to return the two documents immediately to Relion. Relion argues that the two e-mails were inadvertently produced and that they are protected under attorney-client privilege.
According to the Court, there are two standards for the waiver of attorney-client privilege. Under the Ninth Circuit’s holding in Weil v. Investment/Indicators, Research and Management, Inc. a party which voluntary turns over documents absent deception by opposing counsel has waived their attorney-client privilege. (647 F.2d 18, 25 (9th Cir. 1981). The Federal Rules of Evidence Rule 502(b) sets forth the other standard, which suggests that if the party takes reasonable steps to preserve the confidentiality of the privileged matter then the privilege will not be waived. Here, the Court chooses to follow Rule 502(b).
Citation: Nat’l Economic Research Assocs., Inc. v. Evans, LECG Corp., 21 Mass. L. Rptr. 337 (Mass. Super. Ct. Aug. 3, 2006).
Employee/Employer Implicated: Information Technology Manager
e-Lesson Learned: If a company wishes to read an employee’s emails to his attorney sent through his personal Yahoo e-mail account through the Internet, albeit on a company-provided laptop, it must clearly tell the employee that: (1) all such e-mails are stored on the hard disk of the company’s computer in a temporary file, and (2) the company expressly reserves the right to retrieve and read such files.
Want to read employees’ personal Yahoo emails? Then tell them! (in Writing, of course)
The use of a personal e-mail account on an employer-issued computer presents challenges for both employers and employees. An employee who uses a web-based e-mail service to communicate with his lawyer does not waive attorney-client privilege in those emails just because they are automatically (and unbeknownst to him) copied to his company-owned laptop computer when he views them.
Citation: In re Asia Global Crossing, Ltd., 322 B.R. 247 (Bankr. S.D.N.Y. 2005)
Employee/Employer Implicated: Executive
e-Lesson Learned: Attorney-client privilege does not apply to a employee’s communications with his personal attorney when (1) the employee uses his employer’s e-mail system to send the communications, and (2) the client cannot reasonably expect the communications to remain private.
Sending personal e-mails from work might be less personal than you think.
The bankruptcy court for the Southern District of New York concluded in this case that the attorney-client privilege does not apply to a client’s communications with his personal attorney when (1) the client used his employer’s e-mail system to send the communications, and (2) the client could not reasonably have expected the communications to remain private. However, the court denied the trustee’s motion for summary judgment because it could not find as a matter of law that the debtor’s employees in this case held an unreasonable expectation of privacy when using their company’s e-mail system for personal matters.
e-Lessons Learned is fast becoming the site of choice for employers, employees, judges, lawyers, and journalists who are interested in learning more about these areas without being intimidated by the complexity of the topic.In fact, organizations and event coordinators often feature e-Lessons Learned as their official e-discovery blog.To register e-Lessons Learned as the official blog of your organization or event, click here.
“The blog takes a clever approach to [e-discovery]. Each post discusses an e-discovery case that involves an e-discovery mishap, generally by a company employee. It discusses the conduct that constituted the mishap and then offers its ‘e-lesson’ — a suggestion on how to learn from the mistake and avoid it happening to you.”
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"Although I may have missed some, yours is the first article that I have seen addressing Zubulake II. It is often the lost opinion amongst the others."
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Tagged as: Admissibility, Claw Back, Privilege, Production of Data, Waiver, Work-Product Doctrine
