e-Discovery Docket Sheet

The plaintiff filed a medical malpractice suit relating to care received at a Veteran's Hospital. During discovery, the plaintiff obtained a series of “privileged” e-mails attached to various discoverable documents. The defendant argued that the e-mails were privileged as attorney work product, had been inadvertently disclosed, and should be returned to the defendant and disallowed at trial. In response, the plaintiff contended that even if the e-mails were work product, the defendant waived protection of the privilege by producing the e-mails. The court adopted the Ninth Circuit's five factor test relating to privilege waiver, which weighed the following factors: “(1) the reasonableness of the precautions to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the 'overriding issue of fairness'.” Applying the test, the court noted that neither party presented evidence of precautionary measures taken to prevent inadvertent disclosure. The court also noted that the defendant attempted to rectify the error in a timely manner and that the extent of the disclosure was limited. Based on its findings, the court determined that the privilege was not waived, ordered the plaintiff to return the e-mails and declared that the e-mails would not be admissible at trial. Banks v. United States, 2005 WL 974723 (W.D.Wash. Mar. 22, 2005).

In a dispute between two oil companies, the defendant moved to set aside an adverse inference instruction issued by a magistrate based on the defendant's failure to produce certain documents. Specifically, the magistrate had ordered the defendant to “make all Board minutes and related Board documents available in hard copy, and electronic database, for review by plaintiff's counsel.” The magistrate further stated that sanctions would be entered for noncompliance with the order. After the defendant stated it would not be able to comply with the order because Venezuelan law prohibited disclosure of the relevant documents, the magistrate entered an adverse inference instruction. In appealing the magistrate's decision, the defendant claimed that the documents being withheld were irrelevant to the litigation and that the defendant did not possess the requisite culpable state of mind for such a severe sanction. The court noted that the defendant did not provide precise reasons for refusing to produce the documents and did not attempt to narrow the scope of withheld documents. Upholding the magistrate's adverse inference instruction, the court declared: “the detrimental effect of [the] defendant's failure to produce documents on [the] plaintiff is the same regardless of [the] defendant's reasons for refusing to produce them.” Lyondell-Citgo Ref., LP v. Petroleos de Venezuela, S.A., 2005 WL 1026461 (S.D.N.Y. May 2, 2005).

e-Discovery Docket Sheet was written by Michele C.S. Lange, a member of this newsletter's Board of Editors, and a staff attorney with Kroll Ontrack, with assistance from Charity Delich, a Kroll Ontrack law clerk. Lange has published numerous articles and speaks regularly on the topics of electronic discovery, computer forensics and technology's role in the law. Information in these summaries is taken from the Kroll Ontrack monthly E-Discovery Case Law Update and Computer Forensics newsletters, which may be accessed at www.krollontrack.com. Lange can be reached at [email protected].

Work Product Privilege Not Waived
For Inadvertent Production of e-mail