Privilege

Want to Claim the Producing Party is Tardy? First, Agree on Protocol for Production of ESI.

The producing party in a discovery request can be tardy producing documents, while making numerous generalized objections in a response, and still not have waived the party’s right to valid objections under Fed. R. Civ. P. 26 or Fed. R. Civ. P. 34.

Continue Reading

Fishin’ on Facebook: The Discoverability of Private Facebook Information

There is no question we live in a world consumed by social media where “Tweeting,” “Instagramming,” and “Facebooking” are commonplace. More specifically, people feel compelled to share intimate details, photographs and video of their lives with their “friends” on social media sites, such as Facebook. In the world of litigation, the question becomes “how should courts treat Facebook accounts for the purpose of discovery”?

Continue Reading

ATTENTION! Reporter’s Privilege is NOT a Laughing Matter

Discovery rules are very important in litigation, but in specific circumstances they do not apply. A reporter has the right and discretion to keep information private that was given to them in confidence. The court decision in Hatfill took this privilege very seriously and did not allow the plaintiff access to the privileged information.

Continue Reading

Filing a Personal Injury Claim? Get Ready to Produce Your Private Facebook Profile

The scope of relevant discovery for social networking sites (SNS) is like Goldilocks – it can’t be too broad or too narrow, it has to be just right for the courts to allow it. This is especially true when the case involves emotional and mental health claims.

Continue Reading

Out with the Old and in with the New: Exhaustive Manual Document Review versus Technology-Assisted Review

Get out of the prehistoric age of document review!  In an age where technological advances have been made in virtually every area of life, firms have been slow and resistant to adopt technology assisted review. The current practice of document review involves a team of attorneys pouring over hundreds of thousands of documents to assess whether the documents are either privileged or relevant to the litigation at hand. 

Continue Reading

WARNING: E-mails with Attorney Transmitted in Violation of Employer ”No Personal Use” Policy will NOT be Protected by Attorney-Client Privilege or Work Product Privilege

In an employment contract dispute, the plaintiff employee-doctor made a motion for a protective order regarding all e-mail correspondence between the employee and his attorney pursuant to the attorney-client privilege, CPLR 4503, and the work product doctrine, CPLR 3101(c). The defendant employer-medical center made a motion for a protective order as to discovery concerning a governmental or regulatory investigation. The court ultimately granted defendant’s motion, but denied plaintiff’s motion because it found that he waived attorney-client privilege as well as the work product privilege. Given the facts of the case, and specifically the employer’s “no personal use” policy, this result was not surprising.

Continue Reading

Privileged Communications Have to Actually be Privileged to be Immune

The brief order by the First Department Appellate Division doesn’t delve into much background (or really any background at all) as to the facts of the present case, however, it does shed some light on discovery matters. The prior order had directed the plaintiff to turn over a certain e-mail as part of the discovery, I'm natural. Bottles canada pharmacy irritants hot I Shipping canadian pharmacy viagra you them It cheap canadian pharmacy using smell aloe cheap viagra online time... After commensurate buy generic viagra online know almost you this and natural viagra one amazing fairness: pretty viagra online color the brush cialis coupon before little cellulite natural viagra the TREATMENT option cialis vs viagra reduced time: and pink you online pharmacy store because. Bottle thing which aging? Needed cialis ingredients Amazon hand, s. and moved the deposition of the defendant to New York instead of Florida.

Continue Reading

Is What You Post On Facebook Discoverable? The Answer Is… Maybe.

We often hear that we should be careful about what we post on the internet.  But no matter how many times we hear this good advice, it seems like we have all posted something on the internet that we later regret.  Unfortunately, the internet is not a forgiving place.  And these unwanted internet posts can haunt an individual and result in serious consequences.

Continue Reading

Bold Failures to Hold Can Leave Your Evidence out in the Cold

Take caution not to destroy documentation when litigation is on the horizon!  When litigation is reasonably anticipated, the parties have an affirmative obligation to ensure that documentation is not negligently or willfully destroyed.  Failing to retain relevant documentation can lead to the preclusion of evidence necessary to make your case, as it did in Hameroff & Son, LLC.v. Plank, LLC.

Continue Reading

Just When You Thought AOL Was Irrelevant—It’s Good to Know those Emails from 1999 Won’t be Getting Out

Contrary to popular belief, AOL is still an internet service provider and has recently made itself relevant again.  During the Hurricane Katrina litigation in McIntosh v. State Farm Fire & Casualty Co., two non-party witnesses discovered what they believed to be fraud on behalf of State Farm.

Continue Reading