Category Archives: Privilege and Confidentiality

Do You Use the Cloud for Document Storage or Production? Read This First.

28 Tuesday Feb 2017

Posted by in Attorney Work Product, Attorney-Client Privilege, Clouds, Confidentiality, Discovery, Dropbox, Emails, Encryption, Evidence, Insurance Defense, Legal Ethics, Legal Technology, Litigation, Passwords, Privilege and Confidentiality, Requests for Production, Sanctions, Subpoena Duces Tecum

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Upload To File-Sharing Site Was Like Leaving Legal File On A Bench, Judge Says; Privilege Is Waived, by Debra Cassens Weiss, ABA Journal©

http://bit.ly/2mxwEcF

Many use the cloud for file storage and sharing when attachments are too big to send by email. If you use the cloud for storage, file-sharing or transfer, document management, project management, or anything similar, here is a cautionary tale.

The plaintiff insurance company sued the defendants, and sought a declaratory judgment on the defendants’ claim of loss by fire. The plaintiff’s investigator uploaded the entire claims file, including surveillance footage, to a drop-box cloud, Box, Inc. The link had no encryption or password. Access to the link alone allowed anyone to see the file.

He then sent the link by email to the plaintiff insurance company, who sent it to the insurance company’s attorneys, who inadvertently sent it the defendants’ counsel in response to a subpoena duces tecum.

The defendants’ counsel looked at it, but didn’t tell the plaintiff they had seen the privileged and confidential information. Inevitably, the defense sent the information back on a thumb drive to the plaintiff’s attorneys during discovery.

After vigorous arguments about confidentiality, work-product doctrine, attorney-client privilege, and disqualification of defense counsel, the facts and court’s reasoning make this an interesting read. -CCE

2,941 Page Privilege Log? Better Make It Good.

10 Monday Aug 2015

Posted by in Attorney Work Product, Attorney-Client Privilege, Discovery, Federal Rules of Discovery, Privilege and Confidentiality, Privilege Log, Requests for Production

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If You’re Going to Submit a 2,941 Page Privilege Log, You’d Better Be Able to Demonstrate Privilege: eDiscovery Case Law, by Doug Austin, eDiscoverydaily Blog

http://tinyurl.com/nwmrx27

The last post by Mr. Gilliland is an excellent illustration of the rule for privilege logs. This example? Well, you be the judge. -CCE

In United States v. Louisiana, 11-470-JWD-RLB. (M.D. La. July 31, 2015), Louisiana Magistrate Judge Richard L. Bourgeois, Jr., after reviewing 40 documents provided by the defendant for in-camera review, granted the plaintiff’s Renewed Motion to Compel a Proper Privilege Log, after denying the original motion because the plaintiff only provided 13 examples of ‘insufficient descriptions’ within the privilege log’s entries. . . .

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Privilege Logs.

10 Monday Aug 2015

Posted by in Attorney Work Product, Attorney-Client Privilege, Discovery, Federal Rules of Discovery, Privilege and Confidentiality, Privilege Log, Requests for Production

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A Case Study on Privilege Logs, by Joshua Gilliland, Esq., Bow Tie Law Blog

https://bowtielaw.wordpress.com/2015/08/08/a-case-study-on-privilege-logs/

In this post, Mr. Gilliland suggests an Excel format and headings for a privilege log with a reminder to cover the privilege log rule requirements. Here is another basic example in Google Docs:

https://docs.google.com/document/d/1DKgo192j0sQfbj5H51gFQZNFbcrQJOxuBaUU3ZzZGBU/preview

-CCE

Privilege logs require more than merely saying a prospectively privileged document is an ‘attorney-client communication.’ This requires litigants to conduct privilege review with far more analysis than simply tagging discovery ‘Attorney Client Privilege’ or ‘Work Product Conduct.’ The case of United States v. State & La. Dep’t of Health & Hospitals highlights the importance of effective discovery review in creating privilege logs. . . .

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E-Discovery Red Herring?

20 Wednesday May 2015

Posted by in Discovery, E-Discovery, Privilege and Confidentiality

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Riley Cell Phone Decision a Red Herring in E-Discovery, by Craig Ball, Ball In Your Court Blog

https://ballinyourcourt.wordpress.com/2015/05/20/riley-cell-phone-decision-a-red-herring-in-e-discovery/

Yesterday’s post on the Digital Strata blog reported on a 2014 order of a U.S. District Court in Connecticut that applied the U.S. Supreme Court’s decision in Riley v. California, 573 U.S. _, 134 S. Ct. 2473 (2014) to civil discovery. I think the Court’s reliance on Riley is misplaced in the civil discovery context; not just because Riley involved state action, but because civil discovery affords a litigant greater protection from oppression and intrusion than that attendant to the search and seizure in Riley. . . .

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Recent Opinions On E-Discovery Hot Topic – Technology-Assisted Review.

14 Saturday Mar 2015

Posted by in Discovery, E-Discovery, Privilege and Confidentiality, Technology-Assisted Review

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Magistrate Judge Peck Addresses TAR, Provides Insight on Important Issues, published by K&L Gates

http://tinyurl.com/m7kll6l

Rio Tinto PLC v. Vale S.A., —F.R.D.—, 2015 WL 872294 (S.D.N.Y. Mar. 2, 2015)

Taking up the topic of technology-assisted review (‘TAR’), Magistrate Judge Andrew Peck’s most recent opinion declares that ‘it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.’ Despite this, there remain open issues surrounding the use of TAR, including, as Magistrate Judge Peck noted, the question of ‘how transparent and cooperative the parties need to be with respect to the seed or training set(s).’ And, while this opinion did not resolve that question (because the parties in the present case agreed to ‘a protocol that discloses all non-privileged documents in the control sets’), it does provide some notable commentary on the issue. . . .

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May Defense Counsel Ask Plaintiff Whether He Was Referred to Doctor?

21 Sunday Dec 2014

Posted by in Attorney-Client Privilege, Cross-Examination, Defense Counsel, Depositions, Direct Examination, Discovery, Interrogatories, Litigation, Making Objections, Negligence, Personal Injury, Plaintiff's Counsel, Privilege and Confidentiality, Trial Tips and Techniques

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“Did Your Attorney Refer You to that Doctor?” by Daniel E. Cummins, TORT TALK Blog

http://tinyurl.com/phfds4w

In a recent Delaware County Court of Common Pleas decision in the case of English v. Stepchin, No. CP-23-CV-786-2014, 101 Del. 424 (C.P. Del. Co. Nov. 12, 2014 Kenney, P.J.), President Judge Chad F. Kenney upheld a defense attorney’s right to inquire of a personal injury plaintiff whether or not plaintiff’s counsel had referred the plaintiff to her treating physician.

This issue came before the court on a Motion for a Re-Deposition of the plaintiff by defense counsel.

At the original deposition, plaintiff’s counsel objected to the defense counsel’s question to the plaintiff as to whether or not plaintiff’s counsel had referred the plaintiff to her treating physicans. Plaintiff’s counsel asserted that such discovery was barred by the attorney-client privilege.
In his Opinion issued on the matter, President Judge Kenney held that, ‘whether counsel referred Plaintiff to her treating physicians does not constitute legal assistance so as to justify properly invoking the attorney-client privilege.’ More specifically, the court found that whether an attorney referred his client to a medical provider for treatment cannot be considered to have been a communication from an attorney to his or her client associated with the rendering of a legal opinion or the provision of legal services so as to invoke the applicability of the attorney-client privilege.

President Judge Kenney also stated that any asserted privilege ‘failed to outweigh the interest of the accessibility of material evidence to further the truth-determining process’ at a trial of a personal injury matter.

The Court granted Defendant’s Motion and ordered a 2nd deposition limited to the issue of who referred Plaintiff to her treating physicians.

Anyone wishing to review this decision, may click this LINK.

Bye, Bye Privilege! What Happens When You Take No Reasonable Steps To Prevent Disclosure.

18 Wednesday Jun 2014

Posted by in Attorney Work Product, Attorney-Client Privilege, Discovery, Document Review, E-Discovery, Federal Rules of Discovery, Requests for Production

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Think Fast—But Not Too Fast: Privilege Waived for Failure to Take Reasonable Steps to Prevent Disclosure, published by K&L Gates

http://tinyurl.com/khbymml

First Tech. Capital, Inc. v. JPMorgan Chase N.A., No. 5:12-CV-289-KSF-REW, 2013 WL 7800409 (E.D. Ky. Dec. 10, 2013)

In this case, the court found that privilege was waived where First Technology Capital, Inc. (‘FTC’*), through counsel, failed to take reasonable steps to prevent the inadvertent disclosure of privileged materials.  The court’s determination that counsel’s efforts were unreasonable was based, in part, on the speed of the alleged page-by-page review (each document received, on average, only 9.84 seconds of review) and FTC’s failure to produce a privilege log, among other things. . . .

Deposition Objections – How To Make And Defend Them.

18 Sunday May 2014

Posted by in Attorney-Client Privilege, Depositions, Discovery, Evidence, Objections

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Proper Deposition Objections, by Susan Minsberg, Lawyerist Blog (with hat tip to Evan Schaeffer!)

http://lawyerist.com/16801/proper-deposition-objections/

Whether you are defending (or taking) your first or your hundredth deposition, you must be ready to handle objections. That means knowing which objections are proper and which are not. Once you know, you can keep the deposition proceeding smoothly — and avoid embarrassing yourself. . . .

A Lesson in Attorney-Client Privilege.

30 Sunday Mar 2014

Posted by in Attorney-Client Privilege, Confidentiality, Discovery, Legal Ethics, Requests for Production

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Judge Wettick: Attorney-Client Privilege Does Not Continue For Defunct Companies, by Daniel E. Cummins, TORT TALK Blog

http://www.torttalk.com/2014/03/judge-wettick-attorney-client-privilege.html

In his recent decision in the case of Red Vision Systems, Inc. et al. v. National Real Estate Information Services, L.P, et al., No. GD – 13 – 008572 (C.P. Allegh. Co. Feb. 26, 2014 Wettick, J.), Judge Wettick dealt with the novel issue of the application of the attorney-client privilege in the context of a request for the production of documents propounded upon a dissolved/non-operating company.

After a thorough review of the scope of the attorney-client privilege, Judge Wettick ultimately ruled that the privilege did not extend to corporations that were no longer in business.  Accordingly, a former in-house counsel for several defunct companies was ordered to turn over documents in discovery related to status of the companies’ assets. . . .

Latest Ninth Circuit Decision on Rule 26 Discovery From Testifying Experts.

16 Sunday Feb 2014

Posted by in 9th Circuit Court of Appeals, Appellate Law, Attorney Work Product, Court Rules, Court Rules, Discovery, Evidence, Expert Witness, Experts, Federal District Court Rules, Federal Rules of Evidence, Requests for Production, Rule 26, Trial Tips and Techniques

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Ninth Circuit Rules on Scope of Discovery from Testifying Experts, by Michael Kelleher, Cogent Legal Blog

http://tinyurl.com/knvhgv2

[A] new Ninth Circuit decision about the scope of expert discovery in federal court caught our attention. The decision in Republic of Ecuador v. Mackay, No. 12-15572 (9th Cir. Jan. 31, 2014) poses the question: where the expert has served both as a confidential advisor to counsel and as a testifying expert, may counsel withhold documents shared with the expert by asserting an opinion work product objection? The short answer is no—documents from testifying experts must be produced unless protected by Federal Rule of Civil Procedure 26(b)(4).

Thorough Analysis of Attorney-Client Privilege and Attorney Work Doctrine.

25 Monday Nov 2013

Posted by in Attorney Work Product, Attorney-Client Privilege, Discovery, Requests for Production

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Federal Middle District Magistrate Judge Mehalchick Addresses Attorney-Client Privilege and Attorney Work Product Doctrine in Discovery Dispute, by Daniel E. Cummins, TORT TALK

http://tinyurl.com/kw7cdbl

The case before Judge Mehalchick, entitled Dempsey v. Bucknell University, No. 4:11-CV-1679 (M.D.Pa. Oct. 7, 2013 Mehalchick, M.J.), arose out of a breach of contract claim filed by a student against the university relative to student conduct hearings held.  At issue were certain documents withheld from discovery by the plaintiff in response to the defendant’s Rule 34 discovery requests on the grounds of the attorney-client privilege and the attorney work product doctrine.