Federal Court Decisions Involving Electronic Discovery, December 1 ...

Federal E-Discovery Decisions, December 1, 2006 – July 31, 2009
password-protected web site that was used to communicate with their brokers. Prior to
the suit, the defendant’s broker asked for information on the defendant’s claims and had
received replies on several occasions containing notes from CNA counsel, which were
supposed to be posted to a specially-designated, restricted area of the web site. These
allegedly privileged communications was included with other communications that the
broker provided to the defendant. The defendant’s counsel, upon reviewing the
information and realizing that it was potentially privileged, notified CNA’s counsel. The
defendant asked the court to rule as to whether privilege or work product protection
applied to the communications, and if so, whether any privilege or protected had been
waived. The court applied Maryland privilege law, which uses the “intermediate”
approach to privilege waiver, taking into consideration (1) the reasonableness of the
precautions to protect confidentiality, (2) the number of inadvertent disclosures, (3) the
extent of the disclosure, (4) the promptness of the measures taken to rectify the
disclosure, and (5) the overriding interests of justice served by enforcing the privilege in
spite of the disclosure. The court found that CNA failed to adequately protect the
confidentiality of its attorney-client communications and that the broker acted within the
scope of his duties in providing the documents to his client. Federal law regarding work
product protection also applied, and federal law gives heightened protection to “opinion”
work product provided to a client in contemplation of litigation. Reviewing precedent
from the Fourth Circuit and other authority on the waiver of work product protection, the
court found that disclosure of counsel’s notes and opinions to the defendant’s agent was
tantamount to disclosure to the defendant, and the defendant was free to use them to the
extent they were relevant and otherwise admissible in the proceeding.
Cont’l Group, Inc. v. KW Prop. Mgmt., LLC, 622 F. Supp. 2d 1357 (S.D. Fla. Apr.
22, 2009). In an action against a former employee by a condominium management
company, the company moved, inter alia, for an adverse inference sanction, alleging the
employee downloaded proprietary ESI prior to establishing her own competing business.
The company requested certain metadata that its forensic expert argued would prove the
employee had downloaded the data; however, the data had been destroyed after notice of
litigation had already occurred. The court denied the motion for sanctions, citing the
employee’s lack of computer knowledge as sufficient excuse to defeat a finding of bad
faith necessary to prove spoliation.
Covad Comm. Co. v. Revonet, Inc., 2008 WL 5377698 (D.D.C. Dec. 24, 2008). In an
action for breach of contract and theft of proprietary business information, the court
ordered that the defendant produce email in native format, as hard-copy printouts or .tiff
images were not reasonably useable and not the formats in which the information was
routinely kept, and the cost of production in native format was low. However, noting that
the plaintiff’s original request consisted of “ancient boilerplate designed for discovery in
a paper world, the parties had not met and conferred prior to discovery, and that the
plaintiff accepted the defendant’s initial production of hard copy documents. Finding that
both parties “went through the same stop sign, it appears to me that they should both pay
for the crash,” the court ordered that the parties split the cost of paralegal review to delete
privileged material, not to exceed $4,000.
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