Showing 106 of 106 results

Chapter: 54.3

Case Name: Morley v. Square, Inc., Case No. 4:14cv172, Case No. 4:10cv2243 SNLJ Consolidated, 2015 U.S. Dist. LEXIS 155569 (E.D. Mo. Nov. 18, 2016)
("The Court's Case Management Order ('CMO') states that 'no party shall be required to identify on its privilege log any communications or documents dated on or after the filing of the lawsuit between and/or among any party, its inside counsel, and/or its outside counsel in this lawsuit that the party would otherwise have been obligated to so identify.'")

Case Date Jurisidction State Cite Checked
2016-11-18 Federal MO
Comment:

key case


Chapter: 54.3

Case Name: Harleysville Worchester Insurance Company v. Sharma, CV 14-2474 (LDW), 2015 U.S. Dist. LEXIS 67633 (E.D.N.Y. May 26, 2015)
("Inasmuch as the privileged documents Jane Doe seeks were generated after the underlying and instant lawsuits were filed and were created in anticipation of litigation, they are not subject to discovery. Accordingly, Harleysville is not required to provide a privilege log identifying these documents.")

Case Date Jurisidction State Cite Checked
2015-05-26 Federal NY

Chapter: 54.3

Case Name: Swoboda v. Manders, Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329 (M.D. La. April 27, 2015)
(finding plaintiff's failure to log documents waived its privilege protection; apparently requiring plaintiff to produce post-litigation responsive documents; "[T]he cases cited by the plaintiff do not directly support the plaintiff's assertion that a privilege log is not required for communications with counsel that take place after the filing of a law suit. In the context of deciding an issue under Rule 26(g), the Grider case simply included dicta which indicates that, in some circumstances, a privilege log 'may not be required' for communications with counsel that takes place after the suit is filed. The authority relied on by the plaintiff is not controlling or persuasive."; "[S]ince the plaintiff did not produce a log or other details about responsive documents he withheld, it is impossible to determine whether the communications took place after this suit was filed and would be covered by the Rule 26(b)(5) exception the plaintiff advocates. Finally, the plaintiff also claimed that it would be unduly burdensome and oppressive for him to prepare a privilege log. Even if this was a recognized objection to supplying a privilege log, the plaintiff failed to provide any information about the number or nature of the documents withheld in an attempt to show that preparing a privilege would be unduly burdensome.")

Case Date Jurisidction State Cite Checked
2015-04-27 Federal LA

Chapter: 54.3

Case Name: Charvat v. Valente, No. 12 CV 5746, 2015 U.S. Dist. LEXIS 25694 (N.D. Ill. March 3, 2015)
("[T]he privilege log need not include post-lawsuit communications that are only among attorneys or only between attorneys and a single client.")

Case Date Jurisidction State Cite Checked
2015-03-03 Federal IL

Chapter: 54.3

Case Name: In re Oil Spill by Oil Rig "Deepwater Horizon" in the Gulf of Mex., MDL No. 2179 SECTION J, 2014 U.S. Dist. LEXIS 39797 (E.D. La. Mar. 14, 2014)
(entering an order that relieved a party of logging some withheld documents; "Paragraph 2 of Pretrial Order No. 14 (Governing the Treatment of Privileged and Work Product Materials) provides, in part, that: 'Privilege log identification is not required for post-April 20, 2010 communications exchanged between the Producing Party and their counsel or among counsel for the Producing Party. In addition, neither communications between or among counsel for Plaintiffs nor communications between or among counsel for Defendants are required to be identified on the Producing Party's privilege log.'" (internal citation omitted))

Case Date Jurisidction State Cite Checked
2014-03-14 Federal LA B 8/14

Chapter: 54.3

Case Name: Powerweb Energy, Inc. v. Hubbell Bldg. Automation, Inc., Civ. No. 3:12CV220 (WWE), 2013 U.S. Dist. LEXIS 148083, at *5-6, *8 (D. Conn. Oct. 15, 2013)
("Plaintiff argues that the Court should deny defendants' motion to compel because it failed to request plaintiff's privilege log until after the close of discovery. . . . Although the Court questions why defendants delayed requesting the privilege log, the plaintiff should not be relieved of its responsibilities under the rules. Indeed, 'the requirement of a privilege log is intended to underscore the gravity, if not the solemnity, of an assertion that otherwise presumptively discoverable documents are exempt from discovery.' . . . Accordingly, the Court will not deny the motion to compel on the basis of untimeliness."; "Although the Court believes that defendants are entitled to production of a privilege log for any withheld privileged documents, it would not be fair to require plaintiffs to produce a log of pre-suit communications if defendants have not done so themselves. As such, plaintiff shall only be required to produce a privilege log of its withheld privileged pre-suit communications where defendants agree to do the same, to the extent it has not already. However, Counsel are of course free to abide by any understanding reached with defendants' prior counsel concerning the logging of withheld pre-suit communications. The Court encourages counsel to discuss any such understandings with prior counsel to determine whether any similar agreements may likewise be reached.")

Case Date Jurisidction State Cite Checked
2013-10-15 Federal CT B 5/14

Chapter: 54.3

Case Name: Clay v. Consol Pa. Coal Co., LLC, Civ. A. No. 5:12CV92, 2012 U.S. Dist. LEXIS 131137, at *7-8 (N.D. W. Va. Sept. 13, 2013)
(rejecting defendant's argument that it did not have to log post-litigation documents, because the defendant did not object in time to the obligation to do so; "[T]he defendants object to the production of these documents stating that they were not required to be included in a privilege log as they were created after the litigation in this matter began. Again, such objection should have been made in relation to the magistrate judge's order on June 25, 2013, wherein the magistrate judge ordered that the defendants produce a privilege log of all claimed attorney-client privilege and work product protected materials, and submit said documents to the Court for in camera review. Objecting to the order wherein the magistrate judge ordered the production of these documents was too late. If the defendants felt that they should not have to comply with the magistrate judge's order to produce a privilege log as to these documents, that objection should have been made directly after the defendants were ordered on June 25, 2013 to produce such documents with a privilege log, not after the August 21, 2013 order wherein they were ordered to produce the documents to plaintiff.")

Case Date Jurisidction State Cite Checked
2013-09-13 Federal WV B 4/14

Chapter: 54.3

Case Name: American Broadcasting Company v. Aereo, Inc., Nos. 12 Civ. 1540 & 1543 (AJN), 2013 U.S. Dist. LEXIS 5316, at *8-9 (S.D.N.Y Jan. 11, 2013)
("[T]he Court notes that they are presented with a number of options that -- separately or in combination -- could mitigate the burden of this request, including at least the following: (1) the submission of 'categorical' privilege logs pursuant to Local Rule 26.2 . . . , possibly to be followed by more particular itemization of documents in a subset of those categories; (2) exclusion from the privilege logs of documents created after the commencement of litigation relating to the technology at issue . . . ; (3) excluding from the privilege log purely internal communications among counsel and their agents; and (4) limiting the request to a subset of specific and identified technologies established through a meet-and-confer process."; ordering a meet-and-confer)

Case Date Jurisidction State Cite Checked
2013-01-11 Federal NY B 6/13

Chapter: 54.4

Case Name: Sun v. Ikea US West, Inc., Case No. 15-cv-01146-MEJ, 2015 U.S. Dist. LEXIS 150544 (N.D. Cal. Nov. 4, 2015)
("A privilege, however, is not waived 'per se' if a party fails to assert the privilege in its initial response.")

Case Date Jurisidction State Cite Checked
2015-11-04 Federal CA

Chapter: 54.4

Case Name: Torres v. ADM Milling Company, Dkt. No. 3:13-CV-574, 2015 U.S. Dist. LEXIS 93297 (W.D.N.C. July 17, 2015)
("Builders Mutual is correct that the counsel's file is relevant to the matter at hand, but because attorney files are not ordinarily within the scope of discovery and are protected by attorney-client privilege, the Court only considers whether ADM waived its attorney-client privilege with regards to the contents of the file."; "Builders Mutual argues ADM waived any privilege objection to producing the counsel's file because it did not lodge any objections to the discovery requests at the time it answered them. . . . ADM argues that attorney files are not normally contemplated by routine document requests and therefore it did not need to object in order to preserve attorney-client privilege. . . . The Court agrees with ADM. As a result, Builders Mutual's Motion to Compel cannot be granted on grounds that ADM waived its attorney-client privilege by failing to object.")

Case Date Jurisidction State Cite Checked
2015-07-17 Federal NC

Chapter: 54.4

Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *18 (W.D. Wash. Sept. 19, 2014)
("As the instant motion is made under the authority provided by Rule 45€(2)(A)(i), Defendants are correct that it is not subject to the obligation to meet and confer under Local Rule 37.")

Case Date Jurisidction State Cite Checked
2014-09-19 Federal WA

Chapter: 54.4

Case Name: Berks Behavioral Health LLC v. St. Joseph Reg'l Health Network, 500 B.R. 711, 717 (E.D. Pa. 2013)
("A claim of privilege is raised as to the second request for production of documents. Because a valid privilege will apply regardless of relevance, it must be dealt with first.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal PA B 5/14

Chapter: 54.7

Case Name: Nimkoff Rosenfeld & Schechter, LLP v. RKO Properties, Ltd., 07 Civ. 7983 (DAB) (HBP), 2016 U.S. Dist. LEXIS 70051 (S.D.N.Y. May 24, 2016)
("A non-party's failure to make objections to a Rule 45 subpoena within fourteen days renders any subsequent objections untimely, however courts are not required to deem all untimely raised objections to be waived as a matter of law."; "The Objection is therefore sustained to the extent that it was erroneous to find that untimely assertion of privilege resulted in waiver as a matter of law.")

Case Date Jurisidction State Cite Checked
2016-05-24 Federal NY

Chapter: 54.7

Case Name: Weinrib v. Winthrop-Univ. Hosp., No. CV 14-953 (JFB) (AKT), 2016 U.S. Dist. LEXIS 37102, at *20 n.2 (E.D.N.Y. Mar. 22, 2016)
("Winthrop's counsel did not raise an objection based upon the attorney-client privilege to the questions at issue. The sole objection raised concerned the attorney work product privilege. . . . As such, this objection is deemed waived.")

Case Date Jurisidction State Cite Checked
2016-03-22 Federal NY B 8/16

Chapter: 54.7

Case Name: Motion Indus., Inc. v. Superior Derrick Servs., LLC, Civ. A. No. 15-1958 SECTION: "H"(5), 2016 U.S. Dist. LEXIS 23826, at *8, *8-9 (E.D. La. Feb. 26, 2016)
(declining to find a waiver based on plaintiff's six-week delay in responding to a document request and failure to provide a log; "When a party invoking a privilege fails to comply with the Rule 26(b)(5) requirement to provide a privilege log, courts have routinely found that all assertions of privilege or other protections against the requested discovery have been waived."; "Accordingly, because the Plaintiff failed to respond or object at all until six weeks after its deadline to do so and because when it did respond it failed to provide the Defendant or the Court the required privilege log, any objections based on a claim of privilege are waived.")

Case Date Jurisidction State Cite Checked
2016-02-26 Federal LA B 8/16

Chapter: 54.7

Case Name: Tatung Co. v. Shu Tze Hsu, Case No. SA CV 13-1743-DOC (ANx), 2016 U.S. Dist. LEXIS 22012, at *38 (C.D. Cal. Feb. 19, 2016)
(finding that the defendants waived privilege protection by not disclosing the existence of pertinent responsive documents or preparing a log; "Viewing this matter from a holistic perspective, the Court finds the Burlington [Burlington N. & Santa Fe Ry. v. United States District Court, 408 F.3d 1142, 1147 (9th Cir. 2005)] factors weigh strongly in favor of Tatung's position that the Former Employee Defendants have waived any privilege they now belatedly assert. Defendants utterly failed to comply with the Federal Rules and act in accordance with the spirit of the Federal Rules. The Court concludes Defendants' inexplicable delay in disclosing the existence of the WD Escrow Records, asserting any privilege, and producing a privilege log is unreasonable under the circumstances.")

Case Date Jurisidction State Cite Checked
2016-02-19 Federal CA B 8/16

Chapter: 54.7

Case Name: Grand Canyon Skywalk Development LLC v. Cieslak, Case Nos.: 2:15-cv-01189-JAD-HWF2:13-cv-00596-JAD-GWF, 2015 U.S. Dist. LEXIS 107457 (D. Nev. Aug. 13, 2015)
("The Tribe's refusal to waive the privilege under these circumstances is likely to be prejudicial to Scutari & Cieslak. Scutari & Cieslak should not be permitted to rely on the advice of counsel defense if Plaintiffs are prevented from exploring the legal advice that was allegedly provided. There may, however, be an issue whether the Tribe has waived its attorney-client privilege in this matter by failing to assert it in a timely manner."; "The factual record is insufficient at this point to support a finding that the Tribe waived its attorney-client or work-product privileges by failing to assert them in a timely manner.")

Case Date Jurisidction State Cite Checked
2015-08-13 Federal NV

Chapter: 54.7

Case Name: Winthrop Resources Corp. v. CommScope, Inc., Civ. A. No. 5:11-CV-172, 2014 U.S. Dist. LEXIS 158413 (W.D.N.C. Nov. 7, 2014)
(finding that the company had waived any work product claim for communications between the company lawyer and a former employee because the company had not raised the work product claim before the magistrate judge; "Magistrate Judges fulfill a vital role in the federal judiciary. It would defeat the purpose of the Magistrate's Act to allow a party to object to a Magistrate's Order on a ground the party never raised before the Magistrate.")

Case Date Jurisidction State Cite Checked
2014-11-07 Federal NC

Chapter: 54.7

Case Name: Maxtena, Inc. v. Marks, Civ. A. No. DKC 11-0945, 2013 U.S. Dist. LEXIS 42332, at *17-18, *32 (D. Md. Mar. 26, 2013)
("It is undisputed that Maxtena never filed a Rule 45(c) motion or otherwise argued that the subpoenas issued by Marks to the State sought disclosure of privileged documents. Additionally, neither Maxtena nor the State provided a privilege log describing the documents withheld by Mr. Dann until after the instant dispute arose. Although disappointing, neither of these omissions is sufficient -- in light of the procedural posture -- to result in any waiver or forfeiture. As noted, the State entities' compliance with the subpoenas was stayed pending resolution of its motions to quash. This stay necessarily extended the deadline for Maxtena to file its own Rule 45(c) motion until the court established a new compliance period.")

Case Date Jurisidction State Cite Checked
2013-03-26 Federal MD B 3/14

Chapter: 54.7

Case Name: Kiner v. Future Homemakers of Am., Inc., 17 Va. Cir. 324 (Va. Cir. Ct. 1989)
(holding that a party had not waived the attorney-client privilege and work product protection by failing to object to discovery within 21 days)

Case Date Jurisidction State Cite Checked
1989-01-01 State VA

Chapter: 54.201

Case Name: Zorek v. CVS Caremark Corp., Civil No. 1:13-cv-1949, 2014 U.S. Dist. LEXIS 127742, at *7-8 (M.D. Pa. Sept. 11, 2014)
("As the Advisory Committee explains, allowing for non-waiver of privilege regardless of the degree of care exercised by the producing party can avoid potentially large costs of pre-production review. This is particularly true, for example, in litigation involving ESI and large amounts of documents. Where large amounts of data or documents are responsive but only a few of which may turn out to be useful, it is less costly in terms of time and labor to conduct privilege review after the relevant documents have been identified. . . . In this case, large amounts of documents are not involved. As Plaintiff points out, 'the number[] of documents produced by [Defendant] will be measured in the thousands of pages, not in terabytes of data.' Hence, the efficiency rationale of forgoing pre-production review does not apply. And to the extent that Defendant's proposed clawback provision would shift the burden of privilege review to the receiving party, inefficiency would result since presumably the producing party is better positioned to identify which documents are privileged. For similar reasons, under Defendant's proposal, needless uncertainty would obtain: the receiving party could never be sure which documents might be later subject to a claim of privilege.")

Case Date Jurisidction State Cite Checked
2014-09-11 Federal PA

Chapter: 54.201

Case Name: Mastr Adjustable Rate Mortgs. Trust 2006-OA2 v. UBS Real Estate Sec. Inc., No. 12 Civ. 7322 (HB) (JCF), 2013 U.S. Dist. LEXIS 130606, at *10 n.3 (S.D.N.Y. Sept. 12, 2013)
(in an opinion by Magistrate Judge James Francis, analyzing privilege log issues; "In support of its argument that it has complied with its discovery obligations, UBS compares the number and percentage of documents reviewed and produced by UBS to the number and percentage reviewed and produced by U.S. Bank [plaintiff]. This comparison is simplistic and unhelpful.")

Case Date Jurisidction State Cite Checked
2013-09-12 Federal NY B 4/14

Chapter: 54.202

Case Name: In re International Oil Trading Company, LLC, Case No. 15-21596-EPK, Ch. 7, 2016 Bankr. LEXIS 1856 (S.D. Fla. April 28, 2016)
("It may be true that some portion of the communications among Mr. Al-Saleh, his counsel, and Burford address mundane transactional matters. Importantly, in this case, any communication that does not at all concern ongoing litigation, prospective litigation, or the like, would not support IOTC USA's theory that Mr. Al-Saleh is an inappropriately active participant in these bankruptcy proceedings. The Court will not force Mr. Al-Saleh to sort through four years of correspondence, including tens of thousands of e-mails and their attachments, in order to provide IOTC USA with non-relevant information.")

Case Date Jurisidction State Cite Checked
2016-04-28 Federal FL

Chapter: 54.202

Case Name: In re International Oil Trading Company, LLC, Case No. 15-21596-EPK, Ch. 7, 2016 Bankr. LEXIS 1856 (S.D. Fla. April 28, 2016)
("It may be true that some portion of the communications among Mr. Al-Saleh, his counsel, and Burford address mundane transactional matters. Importantly, in this case, any communication that does not at all concern ongoing litigation, prospective litigation, or the like, would not support IOTC USA's theory that Mr. Al-Saleh is an inappropriately active participant in these bankruptcy proceedings. The Court will not force Mr. Al-Saleh to sort through four years of correspondence, including tens of thousands of e-mails and their attachments, in order to provide IOTC USA with non-relevant information.")

Case Date Jurisidction State Cite Checked
2016-04-28 Federal FL

Chapter: 54.202

Case Name: Bloomingburg Jewish Educ. Ctr. v. Vill. of Bloomingburg, No. 14-cv-7250 (KBF), 2016 U.S. Dist. LEXIS 35192, at *3, *17-18 (S.D.N.Y. Mar. 18, 2016)
(finding that defendant town had not presented sufficient evidence to support privilege or work product protection for a communications between the town and West End, described as "a public relations and communications strategy firm"; "The Town Defendants do not identify a single case in which a court allowed a party to avoid having to collect, review, and log privileged communications and produce those that do not fall under the privilege. Having staked out this position, the Town Defendants have not asked for an opportunity to garner more support for their assertion of privilege, and there is no ground to grant the Town Defendants another shot. Because of the Town Defendants' delay in taking the necessary steps of collection and creation of a privilege log, they have forfeited their opportunity to delay production of this material to plaintiffs further by just now commencing what would surely be a protracted document-by-document dispute over this material.")

Case Date Jurisidction State Cite Checked
2016-03-18 Federal NY B 8/16

Chapter: 54.202

Case Name: GE v. United States, 119 F. Supp. 3d 17, 18, 18-19, 19, 20, 20-21, 21 (D. Conn. 2015)
(holding that GE's lawyers at Davis Polk could review for responsiveness GE-related documents sought by the United States from third parties Westport Insurance Company and Cahill Gordon; "Plaintiff General Electric Company ('GE') and defendant United States are embroiled in a high-stakes dispute involving GE's claim for a tax refund with interest of approximately $660 million. The dispute stems from a series of complex corporate restructuring/sale transactions that occurred more than ten years ago."; "The parties are now entangled in a discovery dispute involving a legal issue that does not appear (so far as the parties' briefings reflect) to have been previously addressed in any published decision -- perhaps surprisingly so, because I would expect the issue to be framed with some frequency in complex litigation. The issue here supposes a lawsuit between Party A and Party B and that Party A issues a subpoena to a non-party seeking documents that may be subject to a claim of privilege by opposing party B. It further supposes the right of Party B to conduct a privilege review of the subpoenaed documents before they are produced by the non-party to Party A to ensure that the document production does not include documents subject to a claim of attorney-client privilege."; "The question, then, is whether Party B (or, more precisely, its counsel) may also -- at the non-party's request -- conduct a responsiveness review of the documents before they are produced to Party A. In short, is it proper for a non-party recipient of a document subpoena from Party A to delegate or outsource a portion of its compliance obligations to the opposing Party B and its counsel in the litigation?"; "Here, the issue arises in the context of the Government's complaint about GE's conduct with respect to two subpoenas served by the Government on two non-parties to this action: Westport Insurance Company ('Westport') and Cahill Gordon & Reindel LLP ('Cahill'). Westport is a former subsidiary of GE and possesses documents relating to a former GE insurance subsidiary of great importance to this litigation. Cahill is a major law firm that served as counsel to GE on a range of transactional matters in 2002 and 2003 that are also important to the tax dispute in this case."; "Although the Government does not contest GE's right to conduct a privilege review, it vehemently objects to GE or its counsel's involvement in deciding what documents are responsive to the subpoenas that it has served on Westport and Cahill."; "The Government has a right to receive documents that are responsive to its subpoenas, not to have a completely neutral party review and decide what documents are responsive."; "Nor am I persuaded by the Government's myopic view of the scope of the ethical rules that otherwise govern Davis Polk's conduct. The ethical obligations of counsel do not run solely to a client. Quite to the contrary, counsel have multiple ethical obligations to third parties and to the Court that foreclose them from lying, from concealing or altering evidence, or from otherwise engaging in conduct inimical to the due administration of justice. I decline to conclude that David Polk attorneys are free from ethical constraints with respect to their review of Westport and Cahill documents or to presume that Davis Polk attorneys will fail to disclose non-privileged, responsive documents in breach of their ethical obligations."; "I reject the Government's argument that it is categorically improper for a party (or its counsel) in a lawsuit to undertake not only a privilege review but also a responsiveness review of documents that have been sought by the opposing party from a non-party to the litigation. My conclusion assumes that the non-party has knowingly delegated responsibility to a party to the litigation to conduct a responsiveness review. And of course it presupposes as always that the non-party recipient of a subpoena -- notwithstanding its administrative delegation of functions to any third party -- remains ultimately answerable to ensure that its obligations to fulfill the requirements of the subpoena are fully and faithfully discharged."

Case Date Jurisidction State Cite Checked
2015-01-01 Federal CT B 5/16

Chapter: 54.203

Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 36353, at *92 (S.D.N.Y. Mar. 15, 2013)
(ordering the law firm of Patton Boggs to produce documents to Chevron based on the crime-fraud exception; "[I]t is entirely likely that PB has responsive documents -- especially but not only emails and other correspondence with the Ecuadorians about critically important events in Ecuador -- that in the circumstances of this case are not practically available from anyone else. Moreover, PB has been a primary actor in a number of key events.")

Case Date Jurisidction State Cite Checked
2013-03-15 Federal NY B 3/14

Chapter: 54.203

Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 36353, at *91 (S.D.N.Y. Mar. 15, 2013)
(ordering the law firm of Patton Boggs to produce documents to Chevron based on the crime-fraud exception; "Many of the concerns that arise when an adverse trial counsel is subjected to deposition -- e.g., possible compromise of the attorney-client relationship or intrusion on an attorney's work product -- also are present when a law firm involved behind the scenes is required to provide documents to an adversary. Chevron has presented no compelling reason that the Court should not be guided by the factors set forth in Friedman [In re Subpoena Issued to Dennis Friedman, 350 F.3d 65 (2d Cir. 2003)], taking account of all of the relevant circumstances.")

Case Date Jurisidction State Cite Checked
2013-03-15 Federal NY B 3/14

Chapter: 54.203

Case Name: American Broadcasting Company v. Aereo, Inc., Nos. 12 Civ. 1540 & 1543 (AJN), 2013 U.S. Dist. LEXIS 5316, at *7-8 (S.D.N.Y Jan. 11, 2013)
("[R]equiring Plaintiffs or their outside counsel to review every document held by outside counsel regarding the harms caused by all technologies similar to Aereo's technology would be immensely burdensome, as it would likely require review of substantial portions of the litigation files and internal law firm e-mails of numerous cases. Particularly in light of the strong likelihood that such documents are, in fact, subject to legitimate claims of privilege, requiring Plaintiffs to undertake such an endeavor without further limitations is unduly burdensome." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-01-11 Federal NY B 6/13

Chapter: 54.203

Case Name: American Broadcasting Coompany, Inc.. v. Aereo, Inc., Nos. 12 Civ. 1540 & 1543 (AJN), 2013 U.S. Dist. LEXIS 5316, at *7 (S.D.N.Y Jan. 11, 2013)
("[O]ther courts in this district have held that documents held by outside counsel are in the possession, custody, and control of their clients.")

Case Date Jurisidction State Cite Checked
2013-01-11 Federal NY B 6/13

Chapter: 54.205

Case Name: United States v. Dico, Inc., 4:10-cv-00503, 2017 U.S. Dist. LEXIS 52787 (S.D. Iowa March 27, 2017)
("Because the Trial Team who will try the case on behalf of the Government never received access to the correspondence with respect to which production is sought, there is no potential that Defendants will be unduly prejudiced by their inability to anticipate how the correspondence may be used at trial, and no risk of unfair surprise or other injustice pertaining its contents.")

Case Date Jurisidction State Cite Checked
2017-03-27 Federal IA

Chapter: 54.205

Case Name: United States v. Dico, Inc., 4:10-cv-00503, 2017 U.S. Dist. LEXIS 52787 (S.D. Iowa March 27, 2017)
("[T]he Court rejects the argument that the Filter Team was incapable of producing privileged work product prepared in anticipation of litigation by virtue of the fact that it was not responsible for the development of litigation or trial strategy. Rather, the Court concludes the Government has met its burden of establishing a factual basis for its assertion that the materials it claims as privileged were prepared in anticipation of litigation, as the email correspondence was clearly produced while this litigation was ongoing. Additionally, the Court concludes that the Filter Team acted by or for the Government or by or for attorneys on the Trial Team acting as the Government's representatives when it communicated with Dr. George and his attorney.")

Case Date Jurisidction State Cite Checked
2017-03-27 Federal IA

Chapter: 54.205

Case Name: United States v. Deluca, No. 15-12033 Non-Argument Calendar, 2016 U.S. App. LEXIS 19235 (11th Cir. Oct. 25, 2016)
(finding that the government's taint team had not acted properly, which resulted in the government obtaining a criminal defendant's privileged communication; nevertheless affirming the lower court's refusal to dismiss the indictment, despite the constitutional violation; "Thereafter, the FBI computer analyst segregated the data and provided the potentially privileged communications to the filter team, but one of the members of the filter team, John Guard, a former Assistant United States Attorney ('AUSA'), unilaterally decided that the stipulation was not in effect for various reasons. As a result, he gave the prosecution team – without notice to DeLuca – access to communications that he deemed note privileged, including at least some communications between DeLuca and attorneys on DeLuca's list. Guard gave those communications to Vanessa Stelly, the FBI agent assigned to DeLuca's case, who reviewed them and ultimately provided one of the email communications to Russell Stoddard, the AUSA in charge of DeLuca's trial."; "Precedent from this Circuit clearly establishes that dismissal of the indictment as a sanction for a violation of a defendant's attorney-client privilege is inappropriate absent 'demonstrable prejudice.'"; "In sum, because there has been no showing of prejudice based on the government's violation of DeLuca's attorney-client privilege, the district court properly concluded that dismissal of the indictment was not appropriate. DeLuca does not otherwise challenge his convictions or sentences.")

Case Date Jurisidction State Cite Checked
2016-10-25 Federal

Chapter: 54.205

Case Name: United States v. Levin, 15 Cr. 101 (KBF), 2015 U.S. Dist. LEXIS 137615 (S.D.N.Y. Oct. 5, 2015)
("The Court notes that it has concerns regarding the procedures used by the Government in bringing this motion, and particularly with regard to the role of the Wall AUSA. The Court does understand that a similar process has been used in this District on other occasions. . . . The Government's use of an ethical wall to conduct a responsiveness and privilege review of material seized pursuant to a search warrant is rooted in the protections of the Fourth Amendment. . . . In short, when searches capture large volumes of documents, some of which may be privileged or non-responsive, the ethical wall is designed to protect the defendant's rights to the protection of his privilege and the culling out of documents not within the scope of the search warrant. The balance between protecting a defendant's Fourth Amendment rights and the realities of how documents are seized has led, inter alia, to the practice of using an ethical wall. As the wall is for the protection of the defendant's rights, it is decidedly not to give the Government a substantive look into that which it has no right to see."; "The Court believes that the practice of having the Wall AUSA file a motion for application of the crime-fraud exception on behalf of the prosecution team conflicts with the Wall AUSA's intended role to prevent overbreadth of the Government's seizure of material pursuant to a search warrant. In the Wall AUSA's circumscribed role, he or she is not supposed to affirmatively act on behalf of the prosecution. Several courts in this district have expressed concern over the very practice of utilizing a Wall AUSA to conduct an initial review of seized material for potential privilege issues in the first instance. . . . By bringing the instant motion, the Wall AUSA has gone one step further. What the Court finds particularly problematic in this instance is that the Wall AUSA, at least implicitly, bases her motion on her substantive awareness of the content of the documents at issue. This raises the potential Fourth Amendment concerns the ethical wall was intended to avoid.").

Case Date Jurisidction State Cite Checked
2015-10-05 Federal NY

Chapter: 54.205

Case Name: United States v. Coffman, Case Nos. 12-5574/5611/6090, 2014 U.S. App. LEXIS 14251 (6th Cir. App. July 22, 2014)
(approving a government taint team; "Milby contends that the Government's 'taint team' procedure violated his due process rights. But Milby agreed to this document review process and thus has invited this error, if error there was. We therefore review this claim under the invited error doctrine, according to which, 'when a party has himself provoked the court to commit an error, that party may not complain of the error on appeal unless that error would result in manifest injustice.'")

Case Date Jurisidction State Cite Checked
2014-07-22 Federal

Chapter: 54.205

Case Name: In the Matter of the Search of Advanced Pain Centers Poplar Bluff v. Ware, Case No. 4:13CV010408AG and Case No. 1:13CV00107 AGF, 2014 U.S. Dist. LEXIS 43177 (E.D. Mo. March 31, 2014)
(describing a government Taint Team's role; "Pursuant to the Court's Order of July 28, 2013, the Government instituted a Taint Team and 'Chinese Wall' process for review of the seized documents that Petitioners assert are protected by the attorney-client privilege and work product doctrine.")

Case Date Jurisidction State Cite Checked
2014-03-31 Federal MO

Chapter: 54.205

Case Name: Carlson v. Carmichael, Civ. A. No. 10-3579, 2013 U.S. Dist. LEXIS 101088, at *7 (E.D. Pa. July 19, 2013)
("Defendants appear to have no information as to whether or how anyone at the U.S. Attorney's Office sequestered privileged documents from non-privileged ones.")

Case Date Jurisidction State Cite Checked
2013-07-19 Federal PA B 5/14

Chapter: 54.205

Case Name: United States v. Lentz, 524 F.3d 501 (4th Cir. 2008)
(approving the government's use of a "taint" team, which had reviewed telephone recordings between a criminal defendant and his lawyer)

Case Date Jurisidction State Cite Checked
2008-01-01 Federal B 6/09

Chapter: 54.404

Case Name: Deel v. Bank of Am., N.A., 227 F.R.D. 456, 458 (W.D. Va. 2005)
("'The burden is on the proponent of the attorney-client privilege to demonstrate its applicability. The proponent must establish not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege was not waived.' Id. [United States v. Under Seal (In re Grand Jury Subpoena), 341 F.3d 331, 336 (4th Cir. 2003)]")

Case Date Jurisidction State Cite Checked
2055-01-01 Federal VA

Chapter: 54.404

Case Name: United States v. Moazzeni, Case No. 3:12CR45-HEH, 2012 U.S. Dist. LEXIS 171240, at *18 (E.D. Va. Dec. 3, 2012)
("[T]he burden is on Moazzeni to demonstrate that any document is privileged. Solis v. Food Emplrs. Labor Relations Ass'n, 644 F.3d 221, 232 (4th Cir. 2011) (citing In re Grand Jury Proceedings, 33 F.3d 342, 353 (4th Cir. 1994)).")

Case Date Jurisidction State Cite Checked
2012-12-03 Federal VA

Chapter: 54.404

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376, 382 (W.D. Va. 2012)
("The party asserting the work-product doctrine bears the burden to establish that it applies to the document at issue. See Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D. 536, 542 (N.D.W.Va. 2000) (citing Sandberg v. Va. Bankshares, Inc., 979 F.2d 332, 355 (4th Cir. 1992)).")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal VA

Chapter: 54.404

Case Name: Cintas Corp. No. 2 v. Transcon. Granite, Inc., 77 Va. Cir. 234, 235 (Va. Cir. Ct. 2008)
("The party withholding material they believe to be protected must state the claim expressly; and bears the burden of providing sufficient information about the documents to support the claim.")

Case Date Jurisidction State Cite Checked
2008-01-01 State VA

Chapter: 54.404

Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 750 (E.D. Va. 2007)
("[T]he proponent must establish 'not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege was not waived.' In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003).")

Case Date Jurisidction State Cite Checked
2007-01-01 Federal VA

Chapter: 54.404

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 456, 465 (E.D. Va. 1998)
("This Court agrees that just as the burden of establishing that document is privileged is on the party asserting the privilege, the burden of showing a 'substantial need' for a document is on the party seeking to overcome the privilege")

Case Date Jurisidction State Cite Checked
1998-01-01 Federal VA

Chapter: 54.404

Case Name: McCullough v. Standard Pressing Machs. Co., 39 Va. Cir. 191, 192 (Va. Cir. Ct. 1996)
(addressing work product protection for material created by an insurance company in the third party insurance context; ultimately finding that the materials deserved work product protection; "[T]he proponent of a privilege generally has the burden of establishing that a document or communication is subject to the privilege claimed.") [Vieregg, J.]

Case Date Jurisidction State Cite Checked
1996-01-01 State VA B 12/09

Chapter: 54.502

Case Name: Hunton & Williams LLP v. U.S. Environmental Protection Agency, Civ. A. No. 15-1203 (RC), Civ. A. No. 15-1207 (RC), Civ. A. No. 15-1208 (RC), 2017 U.S. Dist. LEXIS 48907 (D.D.C. March 31, 2017)
("Nor can the information missing from the Corps' Vaughn index be drawn from its declaration. . . . The Corps' declaration states only that, in general: 'Information that was withheld pursuant to the Attorney-Client Privilege contained confidential communications regarding legal consultation regarding the jurisdictional determination and other legal issues related to the Saltworks between the USACE and personnel and their attorneys, and between USACE, EPA, and Army attorneys. The subject of these confidential communications were not released or made known to third parties and therefore these communications are protected from disclosure.' However, these broad and vague statements, in conjunction with a bare Vaughn index, are insufficient. The agency may not 'offer[] nothing more than conclusory assertions and blanket affirmations' to support its use of the attorney-client privilege. . . . This general statement cannot overcome the otherwise inadequate Vaughn index because it fails to provide necessary document-specific information such as the identities of the client and lawyer and whether legal advice was sought. . . . Thus, because the Corps has not satisfactorily demonstrated the elements of the attorney-client privilege, the Court denies it summary judgment on the basis of that privilege.")

Case Date Jurisidction State Cite Checked
2017-03-31 Federal DC

Chapter: 54.502

Case Name: In re Oxbow Carbon LLC Unitholder Litig., Consol. C.A. No. 12447-VCL, 2017 Del. Ch. LEXIS 43 (Ch. Ct. Del. March 13, 2017)
(analyzing the privilege implications of a company's disclosure of an investigation, including surveillance video tapes; "Interrogatory 2 calls on the Koch Parties to '[i]dentify each Person who has been retained by Plaintiffs to conduct any surveillance or investigation into Crestview, Load Line, Christina O'Donnell, Eric Johnson, Michael McAuliffe, or Steve Fried and describe the nature of the each such person's surveillance or investigation assignment and the results of same.' The Koch Parties responded to this interrogatory with the same non-substantive, generic objections on the basis of relevance, burdensomeness, and supposed ambiguity of the terms 'surveillance' and 'investigation.' The Koch Parties also asserted in conclusory fashion the attorney-client privilege and work product doctrine."; "The generalized objections are no objections at all and overruled on that basis. The objections to straightforward English terms are not credible. The invocations of privilege and the work product doctrine are conclusory and inadequate. They are also overruled for the additional reason that neither doctrine protects discovery of 'the facts that the adverse party's lawyer has learned, or the persons from whom he has learned such facts.'")

Case Date Jurisidction State Cite Checked
2017-03-13 State DE

Chapter: 54.502

Case Name: United States ex rel. Fisher v. Homeward Residential, Inc., Case No. 4:12-CV-461, 2016 U.S. Dist. LEXIS 32910, at *10 (E.D. Tex. Mar. 15, 2016)
("Blanket assertions of privilege are unacceptable, as the Court and other parties must be able to test the merits of a privilege claim.")

Case Date Jurisidction State Cite Checked
2016-03-15 Federal TX B 8/16

Chapter: 54.502

Case Name: United States v. Memorial Health, Inc., 4:11-cv-58, 2014 U.S. Dist. LEXIS 156595 (S.D. Ga. Nov. 5, 2014)
("[R]esort to in camera review is proper only after the party claiming attorney-client privilege has properly claimed privilege and has submitted evidence sufficient to support a good faith belief that such review may reveal evidence establishing the attorney-client privilege."; "Defendants have failed to properly claim privilege and to present more than conclusory, ipse dixit assertions of privilege. Therefore, the Court declines to engage in in camera review because Defendants have failed to give the Court reason to believe that such review may uncover evidence establishing privilege.")

Case Date Jurisidction State Cite Checked
2014-11-05 Federal GA

Chapter: 54.502

Case Name: In re McDonald, Case No. 13-10663C-7G, Case No. 13-10664C-7G, Jointly Administered in Case No. 13-10661, 2014 Bankr. LEXIS 3780, at *15 (M.D.N.C. Sept. 3, 2014)
("A mere allegation that the work product rule applies is not sufficient to invoke its protection.")

Case Date Jurisidction State Cite Checked
2014-09-03 Federal NC

Chapter: 54.502

Case Name: L-3 Communications Corp. v. Sparton Corp, Case No. 6:13-cv-1481-Orl-TBS, 2014 U.S. Dist. LEXIS 86426, at *5-6 (M.D. Fla. June 25, 2014)
("Plaintiff, as the party asserting work-product, bears the burden of showing that the information it seeks to protect was prepared or obtained in anticipation of litigation. . . . 'This is considered to be a heavy burden and cannot be discharged by mere conclusory or ipse dixit assertions.'")

Case Date Jurisidction State Cite Checked
2014-06-25 Federal FL

Chapter: 54.502

Case Name: In re Application of Tinsel Grp., S.A., Misc. A. No. H-13-2836, 2014 U.S. Dist. LEXIS 7882, at *6-7 (S.D. Tex. Jan. 22, 2014)
(analyzing the common interest doctrine; "[R]espondents have only made blanket assertions of privilege, broadly characterizing the entirety of Tinsel's requests as privileged under either the attorney-client or work product privileges. Respondents' blanket assertions are insufficient and do not reach any minimum level of specificity in order for the court to evaluate the privileged status of documents for which respondents seek protection.")

Case Date Jurisidction State Cite Checked
2014-01-22 Federal TX B 6/14

Chapter: 54.502

Case Name: Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., 29 F.R.D. 611, 615 (D. Kan. 2014)
("B&V must 'provide sufficient information to enable the Court to determine whether each element of the asserted objection is satisfied.' This burden can be met only by an evidentiary showing based on competent evidence and cannot be discharged by mere conclusory assertions or blanket claims of privilege." (citation omitted))

Case Date Jurisidction State Cite Checked
2014-01-01 Federal KS B 8/14

Chapter: 54.502

Case Name: Callaway v. Cofield (In re Cofield), Case No. 11-02034-8-SWH, Adv. No. 12-00270-8-SWH-AP, 2013 Bankr. LEXIS 1555, at *11 (E.D.N.C. Apr. 11, 2013)
("[T]here has been no showing that the alleged 'communication relates to a fact of which the attorney [Mr. Gilreath] was informed (a) by his client[s] [the debtor and Juan Cofield as co-trustees and co-executors of the Trust and the Decedent Estate] (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and (d) not for the purpose of committing a crime or tort . . . .' It would be error for the court to assume that the privilege applies without requiring its proponents to satisfy every element of the doctrine.")

Case Date Jurisidction State Cite Checked
2013-04-11 Federal NC B 3/14

Chapter: 54.503

Case Name: Liguria Foods, Inc. v. Griffith Labs., Inc., No. C 14-3041-MWB, 2017 U.S. Dist. LEXIS 35370 (N.D. Iowa March 13, 2017)
(condemning boilerplate objections using phrases such as "to the extent" and "subject to" privilege protection; "This litigation is about who is responsible for tons and millions of dollars' worth of sausage, of the peperoni [sic] variety, some of which turned rancid. It's also about lawyers who were not concerned about how the federal discovery rules were made, but how and why they flaunted them. This ruling involves one of the least favorite tasks of federal trial and appellate judges -- determining whether counsel and/or the parties should be sanctioned for discovery abuses. This case squarely presents the issue of why excellent, thoughtful, highly professional, and exceptionally civil and courteous lawyers are addicted to 'boilerplate' discovery objections. More importantly, why does this widespread addiction continue to plague the litigation industry when counsel were unable to cite a single reported or non-reported judicial decision or rule of civil procedure from any jurisdiction in the United States, state or federal, that authorizes, condones, or approves of this practice? What should judges and lawyers do to substantially reduce or, more hopefully and optimistically, eliminate this menacing scourge on the legal profession? Perhaps surprisingly to some, I place more blame for the addiction, and more promise for a cure, on the judiciary than on the bar.")

Case Date Jurisidction State Cite Checked
2017-03-13 Federal IA
Comment:

key case


Chapter: 54.503

Case Name: Liguria Foods, Inc. v. Griffith Labs., Inc., No. C 14-3041-MWB, 2017 U.S. Dist. LEXIS 35370 (N.D. Iowa March 13, 2017)
(condemning boilerplate objections using phrases such as "to the extent" and "subject to" privilege protection; "Moreover, simply stating that a response is 'subject to' one or more general objections does not satisfy the 'specificity' requirement, because, for example, it leaves the propounding party unclear about which of the numerous general objections is purportedly applicable as well as whether the documents or answers provided are complete, or whether responsive documents are being withheld. See, e.g., FED. R. CIV. P. 34(b)(2)(C).")

Case Date Jurisidction State Cite Checked
2017-03-13 Federal IA
Comment:

key case


Chapter: 54.503

Case Name: Liguria Foods, Inc. v. Griffith Labs., Inc., No. C 14-3041-MWB, 2017 U.S. Dist. LEXIS 35370 (N.D. Iowa March 13, 2017)
(condemning boilerplate objections using phrases such as "to the extent" and "subject to" privilege protection; "'Attorneys cannot respond to any discovery request with something similar to 'blanket objections and a statement that discovery would be provided 'subject to and without' waiving the objections.' See, e.g. Network Tallahassee, Inc., V. Embarq Corp., 2010 WL 4569897 (N.D. Fla. 2010).'")

Case Date Jurisidction State Cite Checked
2017-03-13 Federal IA

Chapter: 54.503

Case Name: Gondola v. USMD PPM, LLC, No. 3:15-cv-411-M, 2016 U.S. Dist. LEXIS 69667 (N.D. Tex. May 27, 2016)
(criticizing "subject to" discovery responses; "But the Court cannot let this pass without noting that it has previously explained, 'responding to interrogatories and documents requests 'subject to' and/or 'without waiving' objections is manifestly confusing (at best) and misleading (at worse), and has no basis at all in the Federal Rules of Civil Procedure'; 'this manner of responding to a document request or interrogatory leaves the requesting party guessing and wondering as to the scope of the documents or information that will be provided as responsive will be.'")

Case Date Jurisidction State Cite Checked
2016-05-27 Federal TX

Chapter: 54.503

Case Name: Sprint Commc'ns Co., L.P. v. Comcast Cable Commc'ns, LLC, Consolidated Cases Case No. 11-2684-JWL, Case No. 11-2685-JWL, Case No. 11-2686-JWL, 2014 U.S. Dist. LEXIS 53971 (D. Kansas April 18, 2014)
(criticizing plaintiff's discovery responses "subject to" privilege protection; "Each of Sprint's responses to requests numbered 18-20 contained a number of boilerplate objections (e.g., vague, overbroad, unduly burdensome, privileged) but concluded with the statement, '[s]ubject to and without waiver of the foregoing objections . . . Sprint will produce non-privileged responsive documents within its custody and control.' This statement, without context, leads the reader wondering whether Sprint planned to withhold certain documents based on its objections. Significantly, Sprint did not state that it would produce all non-privileged documents a specification which, if included, might support Sprint's argument that it complied with Fed. R. Civ. P. 34(b)(2)(C) by objecting to a specified part of the request (i.e., only the part seeking privileged information) and producing documents requested in the rest of the request."; "Although in this particular case the court's waiver holding is withdrawn at the request of both parties to avoid a draconian result, practitioners before this court should not view this as a retreat from the court's ruling that when a party objects to discovery but nonetheless answers 'subject to' the objection, the objection will be deemed waived.")

Case Date Jurisidction State Cite Checked
2014-04-18 Federal KS

Chapter: 54.503

Case Name: Loudoun County Asphalt, L.L.C. v. Wise Guys Contracting, L.L.C., 79 Va. Cir. 605, 605 (Va. Cir. Ct. 2009)
(granting defendant's motion to compel discovery from a cross-defendant; "I agree with Wise Guys' argument that the general objections of Fru-Con [Construction Co.] to the subject discovery requests are confusing and not related to any particular discovery request. I am unable to tell which of the many general objections apply to which discovery request. At the very least I think such general objections are not permitted under the discovery rules unless a party in good faith makes it clear that every general objection applies to every discovery request. Considering the issues raised by the pleadings and the discovery in this case, I do not see how Fru-Con in good faith can assert every general objection to every discovery request.")

Case Date Jurisidction State Cite Checked
2009-01-01 State VA B 10/10

Chapter: 54.504

Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
(holding that the work product doctrine can protect documents created both in the ordinary course of business and in connection with litigation; analyzing communications between Ford and CRA; "Document number 2755, however, is a draft memorandum 'prepared at the request of counsel' and sent to James VanAssche, Nicole Rathbun Shanks and Douglas Gastrell, none of whom appear to be attorneys. . . . Even though this document may have been created at the request of counsel, it was not sent to or from counsel for the purpose of seeking legal advice. While such a document may be protectable as work product, CRA did not claim such protection in its privilege log. Protection of this document is inappropriate under the attorney-client privilege. Therefore, the Court will grant Defendant's Motion with regard to this document.")

Case Date Jurisidction State Cite Checked
2015-10-27 Federal MI

Chapter: 54.504

Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "Unwittingly, Mechel may have revealed the reasons for the size of its log and the glaring omissions of basic information from nearly 600 entries. Entry number 227 contained an editorial note that stated: '[T]he signature was cut-off from the email and so the author is unknown. To be safe, I assumed this was from an attorney.". . . Mechel obviously did not intend to produce this telling comment, which confirms what one can infer about how Mechel approached its log. Mechel inverted the law of privilege. Rather than believing that Mechel needed to justify its privilege assertions, Mechel assumed that any document an attorney might have touched would be privileged.")

Case Date Jurisidction State Cite Checked
2014-12-12 State DE

Chapter: 54.504

Case Name: In re McDonald, Case No. 13-10663C-7G, Case No. 13-10664C-7G, Jointly Administered in Case No. 13-10661, 2014 Bankr. LEXIS 3780, at *11 (M.D.N.C. Sept. 3, 2014)
("What is required is that the proponent of the privilege prove each element of the attorney-client privilege as to each document.")

Case Date Jurisidction State Cite Checked
2014-09-03 Federal NC

Chapter: 54.504

Case Name: Williams v. Duke Energy Corp., Civ. A. 1:08-cv-00046, 2014 U.S. Dist. LEXIS 109835 (S.D. Ohio Aug. 8, 2014)
("The party asserting the privilege has the burden of proving each element of the claim. The claim of privilege must be made question-by-question and document-by-document.")

Case Date Jurisidction State Cite Checked
2014-08-08 Federal OH

Chapter: 54.504

Case Name: Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., 29 F.R.D. 611, 615 (D. Kan. 2014)
("B&V must 'provide sufficient information to enable the Court to determine whether each element of the asserted objection is satisfied.' This burden can be met only by an evidentiary showing based on competent evidence and cannot be discharged by mere conclusory assertions or blanket claims of privilege." (citation omitted))

Case Date Jurisidction State Cite Checked
2014-01-01 Federal KS B 8/14

Chapter: 54.504

Case Name: Hanson v. Wells Fargo Home Mortg., Case No. C13-0939JLR, 2013 U.S. Dist. LEXIS 149752, at *10 (W.D. Wash. Oct. 17, 2013)
(finding that the inadvertent disclosure of privileged communications did not result in a waiver; "[T]his privilege cannot extend to the other pages at issue even though they were attached to pages 69 and 70. Documents attached to or included in an attorney-client communication are not automatically privileged, and the party asserting privilege must prove that each attachment is protected by privilege.")

Case Date Jurisidction State Cite Checked
2013-10-17 Federal WA B 5/14

Chapter: 54.504

Case Name: Prowess, Inc. v. Raysearch Labortories AB, Civ. Case No. WDQ-11-1357, 2013 U.S. Dist. LEXIS 21449, at *6 n.4 (D. Md. Feb. 11, 2013)
April 3, 2013 (PRIVILEGE POINT)

"Litigants Must Explain Which Protection Justifies Withholding Documents"

In general conversation, most clients and many lawyers use the term "privilege" when referring either to the attorney-client privilege or to the work product doctrine. However, lawyers must be more precise when justifying the withholding of protected documents in litigation.

In Prowess, Inc. v. Raysearch Labortories AB, the court noted that plaintiff's pleading justifying their withholding of documents "consistently refers to the communications at issue as 'privileged,' without clarifying which doctrine it intends to invoke." Civ. Case No. WDQ-11-1357, 2013 U.S. Dist. LEXIS 21449, at *6 n.4 (D. Md. Feb. 11, 2013). Explaining that the attorney-client privilege and the work product doctrine "include different elements, and serve entirely different purposes," the court bluntly held that it could not find that plaintiff had justified the withholding "without knowing precisely which protection is being asserted, and without knowing which arguments apply to each doctrine." Id.

To make matters more complicated for litigants, the work product doctrine itself involves numerous variations among federal courts applying just a single sentence in the federal rules. The next several Privilege Points will focus on some of these differences.

Case Date Jurisidction State Cite Checked
2013-02-11 Federal MD
Comment:

key case


Chapter: 54.504

Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376, 382 (W.D. Va. 2012)
("As with the attorney-client privilege, an assertion that a document is protected by the work-product doctrine must be established by specific facts and not conclusory statements. See Neuberger Berman Real Estate Income Fund, Inc., 230 F.R.D. at 418.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal VA

Chapter: 54.504

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 503 (4th Cir. 2011)
("Generally, each e mail within a particular line of discussion must be analyzed separately for privilege purposes.")

Case Date Jurisidction State Cite Checked
2011-01-01 Federal

Chapter: 54.504

Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 501 (4th Cir. 2011)
("Procedurally, the party must 'expressly make the claim' and 'describe the nature of the documents . . . in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.' Fed. R. Civ. P. 26(a)(5)(A)."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

Case Date Jurisidction State Cite Checked
2011-01-01 Federal

Chapter: 54.504

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Industries, Inc., Civ. A. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530, at *10 (E.D. Va. April 13, 2010)
(holding that DuPont had not waived the work product protection by providing work product to the government in an effort to cooperate with the government's criminal investigation of a former DuPont employee against whom DuPont was also planning to pursue a civil case; "It is the burden of the party asserting work product privilege to show that the privilege applies, and to meet this burden, the party asserting privilege must show, 'as to each document, that the work product in question was: (1) prepared by, or under the discretion of, an attorney and, (2) was prepared in anticipation of litigation.' Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 272 (E.D. Va. 2004) (citing Hickman, 329 U.S. at 495; In re Grand Jury Proceedings, 102 F.3d 748, 750 (4th Cir. 1996))")

Case Date Jurisidction State Cite Checked
2010-04-13 Federal VA

Chapter: 54.504

Case Name: Cappetta v. GC Servs.Ltd. P'ship, Civ. A. No. 3:08CV288, 2008 U.S. Dist. LEXIS 103902, at *13-14 (E.D. Va. Dec. 24, 2008)
("It is not clear whether Defendant 'expressly' made a proper claim in the first place, as its objections to requests for production all assert 'work product/attorney client privilege,' without distinguishing between the two.")

Case Date Jurisidction State Cite Checked
2008-12-24 Federal VA

Chapter: 54.504

Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 751 (E.D. Va. 2007)
("A conclusory allegation that a communication is protected by attorney-client privilege is inadequate to meet this burden. See General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8th Cir. 1973); North River Ins. Co. v. Stefanou, 831 F.2d 484, 487 (4th Cir. 1987).")

Case Date Jurisidction State Cite Checked
2007-01-01 Federal VA

Chapter: 54.504

Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 751 (E.D. Va. 2007)
("RLI made the conclusory assertion that 'the only way Mr. Rasmussen could possibly know [the answer to each question] would be if his client told him' in a privileged communication. This assertion is unsupported by any proof. A conclusory allegation that the documents sought are protected by attorney client privilege is inadequate to meet this burden.")

Case Date Jurisidction State Cite Checked
2007-01-01 Federal VA B 5/08

Chapter: 54.504

Case Name: Zeus Enters., Inc. v. Alphin Aircraft, Inc., 190 F.3d 238, 244 (4th Cir. 1999)
(upholding denial of a party's request for attorney fees under a contract, based on the party's refusal to allow testimony about "what factual investigation and legal research" the party's law firm conducted; the court "[does] not understand why Zeus could not have allowed its law firm to disclose some information about the nature and extent of its work, without entrenching upon the attorney-client privilege. In any event, the burden of establishing the applicability of the attorney-client privilege rests on the proponent of the privilege. The privilege does not protect all aspects of the attorney-client relationship; it only protects confidential communications between lawyer and client. The proponent of the privilege must establish not only that an attorney-client existed, but also that the specific communications at issue are privileged and that the privilege was not waived. Here, Zeus made a blanket assertion of privilege to Alphin's questions to Shaw Pittman about the scope of that firm's work for Zeus in connection with the NTSB proceeding. Zeus offered nothing to satisfy its burden to establish that the information sought by Alphin was protected by the attorney-client privilege. Accordingly, the district court did not err in striking Zeus's request to recover attorneys' fees paid to Shaw Pittman for its work in the administrative proceeding.")

Case Date Jurisidction State Cite Checked
1999-01-01 Federal

Chapter: 54.505

Case Name: Koumoulis v. Indep. Fin. Mktg. Grp., Inc., No. 10-CV-0887 (PKC) (VMS), 2014 U.S. Dist. LEXIS 7695, at *20-21, *21 (E.D.N.Y. Jan. 21, 2014)
(not for publication) ("Defendants contend that Judge Scanlon 'committed clear error' by permitting Plaintiffs to submit a declaration, instead of a privilege log, documenting advice they received from their attorney about internal complaints and LPL's [defendant] investigation. . . . This contention is meritless."; "Judge Scanlon properly exercised her discretion to allow Plaintiffs to use a declaration to satisfy their disclosure obligation under FRCP 26(b)(5)(A). The rule does not prescribe any particular format for disclosing privilege claims.")

Case Date Jurisidction State Cite Checked
2014-01-21 Federal NY B 6/14

Chapter: 54.505

Case Name: American Broadcasting Company v. Aereo, Inc., Nos. 12 Civ. 1540 & 1543 (AJN), 2013 U.S. Dist. LEXIS 5316, at *7-8 (S.D.N.Y Jan. 11, 2013)
("[R]equiring Plaintiffs or their outside counsel to review every document held by outside counsel regarding the harms caused by all technologies similar to Aereo's technology would be immensely burdensome, as it would likely require review of substantial portions of the litigation files and internal law firm e-mails of numerous cases. Particularly in light of the strong likelihood that such documents are, in fact, subject to legitimate claims of privilege, requiring Plaintiffs to undertake such an endeavor without further limitations is unduly burdensome." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-01-11 Federal NY B 6/13

Chapter: 54.602

Case Name: Dyson, Inc. v. Sharkninja Operating LLC, 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. April 5, 2017)
(rejecting plaintiffs' request for a Special Master; finding that defendant made predictable mistakes in withholding and logging documents, and would have to re-review its withholding and log entries; "Log Entry 1592 is not privileged and should be produced in an unredacted version. The section of the email chain that is redacted copies an attorney (Jennifer McCabe), but does not discuss any legal issues. The subject matter being discussed relates to the performance of certain SharkNinja products, and no legal issues are mentioned at all.")

Case Date Jurisidction State Cite Checked
2017-04-05 Federal IL

Chapter: 54.602

Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)
("Exhibit 12 is an email chain discussing an investor's request for servicer compliance certificates of certain trusts for which Wells Fargo served as the trustee. In responding to the investor's request, Wells Fargo employees discussed how best to interpret a section of the governing agreements that allowed for the trustee to provide periodic or special servicing reports to certificateholders, and referenced and cited advice from internal counsel on how to construe the agreements' language. Based on the counsel's advice, the Wells Fargo employees formulated a response to the investor's request."; "As with Exhibit 10, Exhibit 12 should be produced in redacted form. Much of the email chain consists of communications among Wells Fargo personnel as to the facts of the investor's request and should be produced. The March 3, 2009 email sent at 5:58 PM, however, references in-house counsel's advice as to whether the compliance documents should be provided to the investor, based on counsel's interpretation of the servicing agreement, and is therefore privileged. . . . Also privileged are the two emails sent after the 5:58 PM email, in which the Wells Fargo employees discuss how to proceed in light of in-house counsel's interpretation. Accordingly, Wells Fargo should redact the March 3, 2009 email sent at 5:58 pm and the two subsequent emails, and produce the rest of the email chain.")

Case Date Jurisidction State Cite Checked
2017-03-09 Federal NY

Chapter: 54.602

Case Name: Blackrock Allocation Target Shares v. Wells Fargo Bank, 14-CV-09371 (KPF) (SN), 2017 U.S. Dist. LEXIS 34918 (S.D.N.Y. March 9, 2017)
("Exhibit E contains a DRC and SPS Watchlist Meeting Agenda for a February 4, 2014 meeting, which lists the names of all employees involved, and the memoranda for the issues discussed at the meeting. Again, the four-page Agenda cover sheet should be produced in its entirety, while the memoranda should be produced but with the 'Updates SPS' sections redacted. Where appropriate to protect privileged information, Wells Fargo may also redact additional information, including that contained under the columns 'Expense Amt,' 'Litigation Stage,' and 'Lit Status.'")

Case Date Jurisidction State Cite Checked
2017-03-09 Federal NY

Chapter: 54.602

Case Name: Manitowoc Co., Inc. v. Kachmer, No. 14 C 09271, 2016 U.S. Dist. LEXIS 114553 (N.D. Ill. Aug. 26, 2016)
(analyzing privilege and work product protection for a spreadsheet created by a company's former employee, who the company has sued for taking confidential information; finding that the spreadsheet deserved work product protection, and that the defendant could not overcome the work product protection; "Two categories of the Reuther Spreadsheet, however, clearly contain attorney-client communications. The columns entitled 'How did I use it' and 'Why [sic] felt it was not confidential information' straightforwardly evince communications from Reuther to counsel narrating information for the purpose of obtaining legal advice. Accordingly, the privilege bars Manitowoc from viewing the last two columns of the spreadsheet."; "'Reuther generated the document after Manitowoc filed suit and at the specific instruction of retained counsel. Additionally, we note that the form of communication to counsel is not controlling in determining whether the information conveyed is a 'communication.'"; "Though prohibited from obtaining the Reuther Spreadsheet, Manitowoc may gather the underlying factual information via another means.")

Case Date Jurisidction State Cite Checked
2016-08-26 Federal IL

Chapter: 54.602

Case Name: Le v. Zuffa, LLC, Case No. 2:15-cv-01045-RFB-PAL, 2016 U.S. Dist. LEXIS 69813 (D. Nev. May 26, 2016)
(finding that many emails to and from Milbank Tweed lawyers were not protected by the attorney-client privilege; "Applying these principles, the court finds the majority of the redacted paragraphs in dispute in this motion are not privileged. The first redacted paragraph relates Pride FC's negotiating positions, the fact the Pride did not trust Zuffa anymore than Zuffa trusted Pride, and that Pride did not want its business tied up any longer in negotiations. The paragraph reports the parties' negotiating positions and contains no legal analysis or advice. The second paragraph relates Zuffa's business purpose for the acquisition -- to stop others from buying Pride and to acquire Pride to shut the business down and acquire its fighters for the UFC. It relates Pride's negotiating position that resulted Zuffa's business decision to set a low threshold for due diligence before the deal became binding on both sides. However, a portion of the last sentence of the paragraph relates the client's concern about a legal matter. In context, it appears to be a legal issue the client and counsel discussed in the expectation it was a confidential communication. The remaining communications do not relate to legal advice sought by or given to Zuffa. Mr. Pachal relates Pride's communications to him during the course of business negotiations. Mr. Paschal was merely serving as a conduit of this information from Pride to his client, Zuffa. The other communications relate to the negotiating parties' commercial strategies and tactics. As such, they are not privileged.")

Case Date Jurisidction State Cite Checked
2016-05-26 Federal NV

Chapter: 54.602

Case Name: Chrimar Sys. Inc. v. Cisco Sys. Inc., Case No. 13-cv-01300-JSW (MEJ), 2016 U.S. Dist. LEXIS 54375, at *25-26 (N.D. Cal. Apr. 21, 2016)
("[W]hile some emails contain both business and legal analysis, such as the discussion of licensing agreements, they 'd[o] not have a readily separable purpose unrelated to the provision of legal advice,' given that business analysis informs the legal strategy for infringement litigation. Visa U.S.A., Inc. v. First Data Corp., 2004 U.S. Dist. LEXIS 17117, 2004 WL 1878209, at *9 (N.D. Cal. Aug. 23, 2004) (holding documents prepared at the request of counsel for the purpose of rendering legal advice are privileged even if they may have informed business analysis as well). Accordingly, ChriMar properly withheld these documents.")

Case Date Jurisidction State Cite Checked
2016-04-21 Federal CA B 8/16

Chapter: 54.602

Case Name: Chrimar Sys. Inc. v. Cisco Sys. Inc., Case No. 13-cv-01300-JSW (MEJ), 2016 U.S. Dist. LEXIS 54375, at *25-26 (N.D. Cal. Apr. 21, 2016)
("[W]hile some emails contain both business and legal analysis, such as the discussion of licensing agreements, they 'd[o] not have a readily separable purpose unrelated to the provision of legal advice,' given that business analysis informs the legal strategy for infringement litigation. Visa U.S.A., Inc. v. First Data Corp., 2004 U.S. Dist. LEXIS 17117, 2004 WL 1878209, at *9 (N.D. Cal. Aug. 23, 2004) (holding documents prepared at the request of counsel for the purpose of rendering legal advice are privileged even if they may have informed business analysis as well). Accordingly, ChriMar properly withheld these documents.")

Case Date Jurisidction State Cite Checked
2016-04-21 Federal CA B 8/16

Chapter: 54.602

Case Name: Del. Display Grp. LLC v. Lenovo Grp. Ltd., Civ. A. No. 13-2108-, -2109- & 2112-RGA, 2016 U.S. Dist. LEXIS 21461, at *20 & n.11 (D. Del. Feb. 23, 2016)
("In the absence of such an assertion of protection, however, a party may not redact information that it unilaterally deems sensitive, embarrassing, or irrelevant."; "The Court acknowledges that there is a split of authority on the question of whether relevance is a proper ground for redactions. Compare Spano v. Boeing Co., 2008 U.S. Dist. LEXIS 31306, 2008 WL 1774460, at *2 (S.D. Ill. Apr. 16, 2008) (holding that redaction is appropriate); Schiller v. City of New York, 2006 U.S. Dist. LEXIS 88854, 2006 WL 3592547, at *7 (S.D.N.Y. Dec. 7, 2006) (same) with ArcelorMittal Cleveland Inc. v. Jewell Coke Co., 2010 U.S. Dist. LEXIS 133263, 2010 WL 5230862, at *2-3 (N.D. Ohio Dec. 16, 2010) (holding that redaction is not permitted under Fed. R. Civ. P. 34); Beverage Distribs., Inc. v. Miller Brewing Co., 2010 U.S. Dist. LEXIS 50732, 2010 WL 1727640, at *4 (S.D. Ohio Apr. 28, 2010) (same); Medtronic Sofamor Danek, Inc. v. Michelson, 2002 U.S. Dist. LEXIS 27981, 2002 WL 33003691, at *4-5 (W.D. Tenn. Jan. 30, 2002) (same). The Court finds the interpretation disallowing redaction to be more persuasive. Since the producing party is ordinarily 'not harmed by producing irrelevant information or by producing sensitive information which is subject to a protective order,' redactions are unnecessary and, as this motion demonstrates, disruptive. See Beverage Distribs., 2010 U.S. Dist. LEXIS 50732, 2010 WL 1727640, at *4. The Court should be 'burdened with an in camera inspection of redacted documents . . . only when necessary to protect privileged material whose production might waive the privilege.' Id.")

Case Date Jurisidction State Cite Checked
2016-02-23 Federal DE B 8/16

Chapter: 54.602

Case Name: Brinker v. Normandin's, Case No. 14-cv-03007-EJD (HRL), 2016 U.S. Dist. LEXIS 8411, at *8 (N.D. Cal. Jan. 22, 2016)
("The mere fact that a non-privileged email contains a copy of a privileged communication does not extend privileged status to other facts or statements that are also contained within the non-privileged email. Parties might otherwise frustrate the eventual discovery of a non-privileged internal email simply by attaching a copy of a privileged communication. Normandin has made no other argument to justify the retention of these internal emails. Normandin shall therefore produce the purely internal emails it has withheld on attorney-client privilege grounds, but Normandin may redact any privileged attorney-client communications contained within them.")

Case Date Jurisidction State Cite Checked
2016-01-22 Federal CA B 7/16

Chapter: 54.602

Case Name: Cue, Inc. v. GM LLC, Civ. A. No. 13-12647-IT, 2015 U.S. Dist. LEXIS 104638 (D. Mass. Aug. 10, 2015)
(holding that General Motors did not waive privilege protection by mentioning in a pleading its intent to rely on advice of counsel, because GM disclaimed any intent to do so at trial; "Finally, Cue has moved for an order requiring the defendant to produce redacted copies of all emails listed on its privilege log. . . . In support of this request, Cue reasons that, at a minimum, the 'header of each email (i.e., the To, From, CC, BCC, and Date fields, and possibly the Subject field as well) contains non-privileged information, and the emails may contain other non-privileged information in the body thereof.'. . . Therefore, it seeks an opportunity to review those emails with the privileged information redacted. . . . The plaintiff's request is denied.": "GM does not take issue with Cue's assertion that documents containing non-privileged information should be produced in redacted form. Nevertheless, it maintains that it has already produced such documents, and has withheld only fully privileged emails. . . . This court has no reason to doubt GM's representation that it has fulfilled its discovery obligations with respect to the challenged emails. To the extent the email headers contain non-privileged information such as the author, recipient, date and subject matter, GM has disclosed that information on its privilege log, and there is no justification for ordering the defendant to produce the information again in an alternative format. To the extent Cue hopes to 'confirm the accuracy' of the non-privileged information described in GM's privilege log, it has provided no factual or legal basis to support its request. There is no reason to doubt the veracity of that information. Therefore, the plaintiff's motion is denied with respect to this request as well.")

Case Date Jurisidction State Cite Checked
2015-08-10 Federal MA

Chapter: 54.602

Case Name: In re Fresh and Process Potatoes Antitrust Litigation, Case No. 4:10-md-2186-BLW-CWD, 4:13:cv-00251-BLW, 2015 U.S. Dist. LEXIS 33577 (D. Idaho March 17, 2015)
(analyzing privilege protection and the common interest doctrine in a trade association context; "Jones Waldo [Law firm] argues that requiring it to manually search through the several dozen banker boxes potentially containing the unredacted emails amounts to an undue burden."; "In the context of this case, the Court precludes disclosure. AWG has had the five documents in its possession for two years. The redactions are clearly noted on the documents. At this stage in the discovery process, it is too late for the Court to order Jones Waldo to incur the time and expense of looking for what amounts to a needle in a haystack. Although the Court is not necessarily inclined to agree with Jones Waldo's characterization of the documents as 'inconsequential,' upon reviewing the documents the Court is not left with an overwhelming concern that Jones Waldo is concealing the 'smoking gun' in this litigation. The redactions have been apparent for two years, AWG can likely place the communications in context with the other thousands of documents and emails already produced. The Court is not condoning Jones Waldo's inability to locate the original documents or the process utilized to Bates stamp the documents, but, because the parties are well past the point of diminishing returns, will accept Jones Waldo's representations in its memorandum as truthful.")

Case Date Jurisidction State Cite Checked
2015-03-17 Federal ID

Chapter: 54.602

Case Name: Kleen Prods. LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill. Nov. 12, 2014)
("As a general matter, there is nothing improper about redacting attorney-client privileged material from a larger disclosure; the problem is that RockTenn appears to have adopted an overly capacious view of what constitutes privileged information.")

Case Date Jurisidction State Cite Checked
2014-11-12 Federal IL

Chapter: 54.602

Case Name: Rauchfuss v. Schultz, Case No. CL1302754P-03, 2014 Va. Cir. LEXIS 39 (Va. Cir. Ct. June 5, 2014)
(allowing redaction of opinion work product in notes prepared by a risk manager after her discussion with a doctor in another provider)

Case Date Jurisidction State Cite Checked
2014-06-05 State VA
Comment:

Virginia case -- New Port News


Chapter: 54.602

Case Name: McNabb v. City of Overland Park, Case No. 12-CV-2331 CM/TJJ, 2014 U.S. Dist. LEXIS 37312, at *11-12 (D. Kan. Mar. 21, 2014)
("To the extent the information redacted from these or any other emails was redacted because Defendant deemed it irrelevant, Defendant has failed to convince the Court of any reason Plaintiff should not be permitted to review this information as allowed under Fed. R. Civ. P. 34.")

Case Date Jurisidction State Cite Checked
2014-03-21 Federal KS B 8/14

Chapter: 54.602

Case Name: Bonnell v. Carnival Corp., Case No. 13-22265-CIV-WILLIAMS/GOODMAN, 2014 U.S. Dist. LEXIS 22459, at *16, *10-11 (S.D. Fla. Jan. 31, 2014)
(finding that a post-accident investigation deserved work product protection, but that a later different consultant report prepared "in an effort to curb litigation" did not deserve work product protection; "[T]he Undersigned concludes that the better, less-risky approach is to not provide litigants with the carte blanche right to willy-nilly redact information from otherwise responsive documents in the absence of privilege, merely because the producing party concludes on its own that some words, phrases, or paragraphs are somehow not relevant. Thus, Carnival cannot unilaterally redact portions of otherwise discoverable, non-privileged documents based on its own belief that portions of the documents are irrelevant to the claims in this case.")

Case Date Jurisidction State Cite Checked
2014-01-31 Federal FL B 6/14

Chapter: 54.602

Case Name: Vector Capital Corp. v. Ness Techs., Inc., No. 11 Civ. 6259 (PKC), 2014 U.S. Dist. LEXIS 7694, at *5-6, *6, *6-7, *7 (S.D.N.Y. Jan. 8, 2014)
(analyzing privilege issues in a lawsuit brought by a potential acquiring company which alleged that the potential target did not adequately disclose documents during a due diligence process; noting that the potential target sought discovery of the potential acquiring company's lawyer's notes prepared during the due diligence process; concluding that purely factual portions of the notes could be separated from the acquiring company's lawyer's opinions, and should be produced; "Here, the documents at issue are communications between Vector and Vector's outside counsel in the course of a due diligence investigation of Ness. They contain factual information acquired from Ness and from third parties by Vector's counsel and updates regarding the status of receipt of factual information from Ness and third parties, hi [sic] obtaining information from the acquisition target, Ness, Vector's counsel was acting as agent and principally for the business purpose of determining whether the acquisition was a sound investment."; "This fact-acquisition process in the course of a business transaction is no more protected by privilege when conducted by an attorney than if conducted by an accountant, engineer or head of a business unit. The factual information presented is not privileged merely by the use of an attorney as a conduit for the information."; "The documents also contain analysis of that factual information and legal advice based upon the information. This analysis and advice by an attorney qualifies for protection under the attorney-client privilege. But unlike in Spectrum [Spectrum Sys. Int'l Corp. v. Chem. Bank, 581 N.E.2d 1055 (N.Y. 1991)], the factual information can be severed from the analysis and legal advice."; "References in the documents such as the following reflect factual information, not legal advice, and must be produced: 'The due diligence material in the Data Room includes a list . . . .' 'S&S has requested the Company to provide the following . . . .' (BER-E-00003352), 'I spoke with [Ness employee] . . . .' (AME-E-00004231), and 'The Company further provided . . . .' (BER-E-00008490).")

Case Date Jurisidction State Cite Checked
2014-01-08 Federal NY B 6/14

Chapter: 54.602

Case Name: MPEG LA, L.L.C. v. Dell Global B.V., Civ. A. No. 7016-VCP, 2013 Del. Ch. LEXIS 299, at *7 (Del. Ch. Dec. 9, 2013
("[T]he item associated with Document ID 213223 contains mixed business and legal advice, and the latter can be segregated.")

Case Date Jurisidction State Cite Checked
2013-12-09 State DE B 5/14

Chapter: 54.602

Case Name: MPEG LA, L.L.C. v. Dell Global B.V., Civ. A. No. 7016-VCP, 2013 Del. Ch. LEXIS 299, at *4 5 (Del. Ch. Dec. 9, 2013
("I further note that the attorney-client privilege protects legal advice only, and not business or personal advice. Where business and legal advice are inseparable in a communication -- or the communication includes individuals serving in both business and legal advisory roles -- the communication will be considered privileged only if the legal aspects predominate. . . . In addition, for communications containing both business and legal advice, in which the business and legal advice can be segregated easily, they 'must be produced with the legal-related portions redacted.' There are circumstances, however, in which legal and business advice cannot be segregated or it is too difficult to determine if the legal issues predominate in a given communication. In those situations, the party asserting the privilege will be given the benefit of the doubt, and the communication will not be ordered produced." (citation and footnotes omitted))

Case Date Jurisidction State Cite Checked
2013-12-09 State DE B 5/14

Chapter: 54.602

Case Name: RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 223 (N.D. Ill. 2013)
("[T]he Court allows RBS to redact business and financial information related to its other clients.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal IL B 4/14

Chapter: 54.602

Case Name: Roberts v. Corwin, No. 175370/2009, 2012 NY Slip Op 51876U, at 4 (N.Y. Sup. Ct. Sept. 10, 2012)
("In contrast, if the document conveys legal advice rendered in co-counseling on the arbitration, as well as legal advice regarding the malpractice action, then the document may be redacted.")

Case Date Jurisidction State Cite Checked
2012-09-10 State NY B 12/13

Chapter: 54.602

Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859 (E.D. Va. 2012)
("In its declarations and Vaughn index, the Army has demonstrated with reasonable specificity that the withheld documents include no reasonably segregable information beyond that already released, and there is no reason to question the Army's good faith in this regard. See Sussman v. U.S. Marshals Service, 494 F.3d 1106, 1117, 377 U.S. App. D.C. 460 (D.C. Cir. 2007) (agencies entitled to presumption they complied with obligation to disclose reasonably segregable material); Armstrong v. Executive Office of the President, 97 F.3d 575, 578, 321 U.S. App. D.C. 118 (D.C. Cir. 1996) (where government declarations demonstrate with reasonable specificity why documents cannot be further segregated, there is no need for in camera review).")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal VA

Chapter: 54.602

Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 112 (D.D.C. 2012)
("I will hold counsel for BIPI strictly to the obligation imposed by Rule 26(g) of the Federal Rules of Civil Procedure and expect the redactions it makes to be not a word more than is necessary to protect a privilege. If that is not done, I will sanction BIPI counsel and, at a minimum, BIPI will forfeit its privilege to that document. If I detect a pattern of a failure to comply with the obligations I am imposing, I will consider forfeiting the privilege as to all remaining documents.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 54.602

Case Name: Chevron Corp. v. Weinberg Grp., 286 F.R.D. 95, 101 (D.D.C. 2012)
("I know that this opinion has made clear how tired I am of mechanically produced boilerplate privilege logs. I expect specific and clear claims of privilege as to each redaction made. I will hold counsel to their 26(g) obligations ruthlessly, and, at a minimum, hold that the privilege is waived whenever the obligations I am imposing are disobeyed.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 54.602

Case Name: In re Outside Wall Tire Litig., Case No. 1:09cv1217, 2010 U.S. Dist. LEXIS 67578, at *5, *6 n.3 (E.D. Va. July 6, 2010)
("None of the disclosures here in issue were made 'by a client to an attorney,' except for Vance's three-letter 'FYI' comment to his attorney. Plaintiffs represent that they will redact this portion of the document, and thus whether the 'FYI' is a privileged attorney-client communication need not be reached nor decided here.")

Case Date Jurisidction State Cite Checked
2010-07-06 Federal VA

Chapter: 54.602

Case Name: United States v. Christensen, No. 08-50531, No. 08-50570, No. 09-50115, No. 09-50125, No. 09-50128, No. 09-50159, No. 10-50434, No. 10-50462, No. 10-50464, No. 10-50472, 2015 U.S. App. LEXIS 14961 (9th Cir. Aug. 25, 2015)
("An entire document or set of documents may be privileged when it contains privileged portions that are 'so inextricably intertwined with the rest of the text that they cannot be separated.'. . . In contrast, '[i]f the nonprivileged portions of a communication are distinct and severable, and their disclosure would not effectively reveal the substance of the privileged legal portions, the court must designate which portions of the communication are protected and therefore may be excised or redacted (blocked out) prior to disclosure.")

Case Date Jurisidction State Cite Checked
2005-08-25 Federal

Chapter: 54.602

Case Name: In re S<3> LTD., 252 B.R. 355, 364 (E.D. Va. 2000)
("In a situation where a document contains both opinion and nonopinion work product, the Court may redact the portions of the document containing opinion work product and permit discovery of the nonopinion work product upon a showing of substantial need. See National Union, 967 F.2d at 985. See also Advisory Committee Note to Fed. R. of Civ. P. 26")

Case Date Jurisidction State Cite Checked
2000-01-01 Federal VA

Chapter: 54.602

Case Name: Federal Election Comm'n v. Christian Coalition, 178 F.R.D. 456, 469 (E.D. Va. 1998)
("As stated above, the Court has reviewed the contents of Documents 44 and 55, along with the ex parte declaration submitted by the CBN. Without being intimately familiar with the facts, the legal issues and the various participants in the IRS/CBN litigation it is difficult for a court to determine whether certain items on a "To Do List" reflect strategy or are merely factual. That being said, it is the Court's opinion that to err on the side of caution, certain portions of Documents 44 and 55 should be redacted prior to producing the documents in discovery")

Case Date Jurisidction State Cite Checked
1998-01-01 Federal VA

Chapter: 54.604

Case Name: Kleen Prods. LLC v. International Paper, Case No. 10 C 5711, 2014 U.S. Dist. LEXIS 163987 (N.D. Ill. Nov. 12, 2014)
("As a general matter, there is nothing improper about redacting attorney-client privileged material from a larger disclosure; the problem is that RockTenn appears to have adopted an overly capacious view of what constitutes privileged information.")

Case Date Jurisidction State Cite Checked
2014-11-12 Federal IL

Chapter: 54.605

Case Name: Chevron Corp. v. Weinberg Grp., 286 F.R.D. 95, 100 (D.D.C. 2012)
("Weinberg will review each entry and redact from the document only that material which qualifies as opinion work product because it would disclose the 'mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2012-01-01 Federal DC B 10/13