E-Discovery Alert

Amobi v. District of Columbia Dept. of Corrections
2009 WL 4609593 (December 8, 2009)

Attorney work-product privilege was waived because there were no reasonable steps taken to protect memo written by attorney adviser.

Plaintiff was terminated by the Dept. of Corrections for alleged misconduct but later he was reinstated. He sued for injuries caused by the wrongful termination. At issue is a memo written to the Dept. of Corrections by an attorney advisor from the Office of Labor and inadvertently produced to Plaintiff. The court determined that the memo was not entitled to attorney client privilege but that it was protected by attorney work-product privilege because in was prepared in anticipation of an arbitration hearing. However, the court found that the privilege was waived because there were no reasonable efforts taken to protect the
document.
2009_WL_4609593Amobi.doc

Guidance Endodontics LLC v. Dentsply International, Inc
(D. NM December 21, 2009)

Documents on privilege log that were reviewed by heavily integrated consultant were still considered privileged but documents sent to an outside accountant were not privileged.

During the course of discovery in a contract dispute, Guidance supplied a privilege log with a number of documents listed. Dentsply objected to some of the documents on the log because they were sent to a consultant who was not a current employee of Guidance. They objected to other documents on the log because they have been sent to an outside accountant in addition to the company attorney. The court found that Guidance could claim privilege as to the document sent to the consultant because the consultant was very heavily integrated in the company and was receiving a regular wage. The court however found that there was no privilege as to the documents sent to the accountant. He was outside the company and was consulted only for accounting assistance. The accountant was not asked or nor did he request legal advice.
GuidancePacer.pdf

Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities LLC
(S. D. NY Jan. 15, 2010)

The failure to preserve, to issue a litigation hold, to identify key players and to ensure that their electronic and paper records are preserved, to cease deletion of email, to preserve records of former employees, and to preserve back- up tapes with relevant information would support the finding of gross negligence.
Relevance and prejudice may be presumed when the spoliating party acted in bad faith or in grossly negligent manner.

Plaintiffs sued Defendants for losses associated with the liquidation of hedge funds. When preparing for litigation, Plaintiffs' counsel telephoned and emailed Plaintiff employees to collect material to be used in drafting the complaint. They asked Plaintiffs to be over inclusive rather that under inclusive. The court found that this effort was not sufficient for a litigation hold. The court carefully discussed in detail the difference in negligence and gross negligence in the context of discovery. In a very well written and thorough opinion, the court said, that the failure: to preserve, to issue a litigation hold, to identify key players and to ensure that their electronic and paper records are preserved; to cease deletion of email; to preserve records of former employees, and to preserve back- up tapes with relevant information would support the finding of gross negligence. The court also explained, "Relevance and prejudice may be presumed when spoliating party acted in bad faith or in grossly negligent manner." As a result of Plaintiffs' gross negligence, Defendants were entitled to adverse jury instructions as well as monetary sanctions.
PensionCommitteeMontreal.pdf

The cases obtained from Westlaw were reprinted with permission from ThomsonReuters.