Waiver

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.

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Software Glitch Does Not Waive Privilege

In Datel Holdings Ltd. v. Microsoft Corp., the court was faced with a Motion by the Plaintiff to Compel the production of several document’s inadvertently produced by the Defendant and admitted into evidence at a deposition, that the Defendant now claims are protected by the attorney-client privilege. In this case, the Defendant produced several abbreviated versions of an email chain that did not contain the initial email message from in-house counsel to a non-lawyer program manager, although the following reply emails were entirely among non-lawyers, and discussed the results of computer testing and did not transmit legal advice.

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Federal Judge in Illinois Denies Media Group’s Motion to Intervene Under FRCP 24(b)

Despite the importance of the general right to public access of court proceedings, a federal judge in Illinois ruled that a media group could not intervene in a lawsuit because, although it had standing, intervention would cause undue prejudice.

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When it comes to authentication challenges, raise it or waive it!

The New Jersey Superior Court Appellate Division affirmed a final restraining order (FRO) under the Prevention of Domestic Violence Act despite claims by the defendant that key documents submitted by the plaintiff were not properly authenticated and admitted into evidence.  In late 2007, plaintiff, Krinal Shah, filed for a temporary restraining order (TRO) against her husband, Mayur Karnik, alleging he threatened via email to strangle and throw her in a river.  She further alleged that three days later defendant emailed and threatened to kill them both if she filed for divorce.  Finally, plaintiff alleged defendant burned her arm the previous summer.  In response to these allegations, the court issued a TRO and scheduled a hearing for an FRO.

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Letter, Reassess, Repeat: Avoiding Privilege Waiver After Notice of Inadvertent Production of Documents

Technology today often serves as the crutch upon which students and members of the workforce rely to complete and review assignments.  However, such technology does not always efficiently replace good, old-fashioned human effort.  For instance, the spell-checker in Microsoft Word can alert you to a possible mistake but the decision to continue searching for other mistakes must be made by the user.  Indeed, the existence of even one mistake should alert the reader or provider of a document that other mistakes may be present and prompt that person to reevaluate the rest of work.  The 2009 decision United States v. Sensient Colors, Inc. is a critical example of how damaging the failure to promptly and diligently check for additional mistakes can be for privilege invocations during discovery production.

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Letter, Reassess, Repeat: Avoiding Privilege Waiver After Notice of Inadvertent Production of Documents

Technology today often serves as the crutch upon which students and members of the workforce rely to complete and review assignments; however, such technology does not always efficiently replace good old-fashioned human effort. For instance, the spell-checker in Microsoft Word can alert you to a possible mistake but the decision to continue searching for other mistakes must be made by the user. Indeed, the existence of even one mistake should alert the reader or provider of a document that other mistakes may be present and prompt that person to reevaluate the rest of work. The 2009 decision United States v. Sensient Colors, Inc. is a critical example of how damaging the failure to promptly and diligently check for additional mistakes can be for privilege invocations during discovery production.

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You Know Those Files I Gave You Earlier? Yeah… Can You Not Look At Them, Please?

A Kentucky law firm narrowly escaped a waiver of privilege via adherence to Rule 502 (b). After carelessly turning over privileged e-mails; Wood, Wood and Young (of Maysville Kentucky) learned the hard way that turning over reams of e-mail absent careful redaction of privileged communications can have serious consequences. Fortunately, the firm adhered to Rule 502 (b) after opposing counsel put them on notice that privileged communication had been disclosed. In GATX Corp v. Appalachian Fuels, LLC, 2010 U.S. Dist. LEXIS 129706 (E.D. Ky. Dec. 7,2010) the employees merely communicated with counsel via e-mail on a range of topics, some privileged and in the ordinary course of business. Unlike phone calls and snail mail, those communications were easily retrievable, voluminous in nature, and consequently less readily subject to redaction.

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“The Dog Ate It,” “We Didn’t Know About That Shared Directory,” and More Great eDiscovery Excuses

It happens all the time.  To expedite the litigation process, parties reach agreements as to the scope and timing of electronic discovery.  After all, who wants to delay litigation with the lengthy and expensive review of a universe of documents when you can significantly shrink that universe without compromising the quality of your production by agreeing on a set of specific custodians? The parties in Wixon v. Wyndham Resort Development Corp. reached an agreement that by a specific date, Wyndham would produce electronically stored information (“ESI”) held by specific custodians that matched specific search terms.  But what happened when, after the deadline, Wyndham revealed a stash of ESI found in a shared directory of a hard drive not allocated to a specific custodian?  Does a document not directly linked to a specific custodian automatically become “nonresponsive”?

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Video eLesson: Stengart v. Loving Care (Decided March 30, 2010)

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BREAKING NEWS: New Jersey: Attorney-Client Privilege (and Personal Emails) Prevail In The Workplace

(See also: Fernando M. Pinguelo, "New Jersey Supreme Court Rules That Employees Retain Privacy and Privilege of Attorney-Client Communications Made from Work," Digital Discovery & E-Evidence, Vol. 10 No. 5, The Bureau of National Affairs, Inc. (BNA) April 15, 2010.) The New Jersey Supreme Court has a long history of affording New Jersey citizens broader privacy protection rights than those offered by the federal government. For example, the New Jersey Supreme Court has held that citizens have a reasonable expectation of privacy in their bank account records, in their garbage, and in the personal information linked to their IP addresses. Thus, when the question of whether an employee who uses a company computer to access e-mail communications between her and her attorney maintains the confidentiality of those communications, it was no surprise that the Court held that the act of an employee who accesses her attorney-client communications via a company laptop does not destroy the privilege.

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