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Work Product Doctrine

Rico v. Mitsubishi Motors Corp., "Rico II", 2007 Cal. LEXIS 13892 (Cal. Dec. 13, 2007).
The California Supreme Court found that any attorney that is inadvertently provided with privileged documents should not read such documents "any more closely than is necessary to ascertain that it is privileged". The court also found that counsel must notify the opposing counsel to attempt to rectify the situation as quickly as possible. In this particular matter, the court disqualified Plaintiffs' attorneys and experts after the attorneys used work product inadvertently produced by Defendants against a defense expert.

Cambrians for Thoughtful Development, U.A. v. Didion Milling, Inc., 2007 U.S. Dist. LEXIS 88878 (W.D. Wisc. Nov. 27, 2007).
Email that was sent from a company's counsel to the company's employees and consultant was deemed work product and was protected under Fed. R. Civ. P. 26(b)(3) from discovery.

Coachmen Industries, Inc. v. Kemlite, 2007 U.S. Dist. LEXIS 82196 (N.D. Ind. Nov. 2, 2007).
The court found that Plaintiff could assert work product privilege for emails with attorneys for Plaintiff in another case because Plaintiffs were essentially allies in litigating their nearly identical cases against Defendant.

Curto v. Medical World Communications, Inc., "Curto II", 2007 U.S. Dist. LEXIS 35464 (E.D.N.Y. May 15, 2007).
The magistrate judge found that, although Plaintiff had emailed herself drafts of documents, these were protected under work-product doctrine. The court ordered the magistrate to reconsider the matter, based on its assertion that Defendant should be permitted to present their argument with regards to why they needed access to these documents.

Beinin v. Center for the Study of Popular Culture, 2007 U.S. Dist. LEXIS 22518 (N.D. Cal. Mar. 16, 2007).
Emails between Plaintiff and third parties prior to the suit being filed were shown to be work product and were not discoverable.

Securities and Exchange Commission v. Nacchio, 2007 U.S. Dist. LEXIS 5435 (D. Colo. Jan. 25, 2007).
Defendant requested that Plaintiff provide a privilege log for work product documents detailing the time period, authors, addressees, and recipients, which the court denied.

McDonald v. HCA Health Services of Oklahoma, Inc., 2006 U.S. Dist. LEXIS 89798 (W.D. Okla. Dec. 11, 2006).
Defendant submitted a privilege log that did not refer to the correct privilege and did not describe documents correctly, however, the court did not agree with the Plaintiff's assertion that Defendant had waived privilege with regards to these documents.

Ashanti v. California Department of Corrections, 2006 U.S. Dist. LEXIS 71114 (E.D. Cal. Sept. 20, 2006).
Documents that were attorney work product that had inadvertently been produced were ordered returned.

Miller v. Holzmann, 2006 U.S. Dist. LEXIS 94655 (D.D.C. Sept. 14, 2006).
Of the 150,000 documents produced by Defendant, the government chose to scan 20,000 of them, and the court ordered the government to disclose which of these documents they chose to scan based on the fact that they were fact work product rather than opinion work product and the Defendant had a substantial need for the information.

Laurence Paris & Interpharm Development, S.A. v. R. P. Scherer Corp., 2006 U.S. Dist. LEXIS 47413 (D. N.J. Jul. 13, 2006).
Two documents generated through the course of normal business operations two years before the litigation began were inadvertently produced, however, they did not qualify for protection under the work product doctrine.

Isom v. Bank of America, 2006 N.C. App. LEXIS 970 (N.C. Ct. App. May 2, 2006).
Email messages between bank officials, which was also sent to bank attorneys, was not protected from discovery, as the emails did not involve giving or seeking legal advice.

Ayers v. SGS Control Services, 2006 U.S. Dist. LEXIS 10134 (S.D.N.Y. Mar. 9, 2006).
The court found that underlying data in a compilation of payroll and timekeeping data defendant was ordered to produce was not privileged and the court was bound to determine an inexpensive determination of every action.

Tilberg v. Next Mgmt. Co., "Tilberg II", 2005 U.S. Dist. LEXIS 36336 (S.D.N.Y. Dec. 28, 2005).
Attorney work-product privilege applied to email messages between defendant's employees and an outside consultant regarding complying with plaintiff's discovery request and the court did not require these email messages to be disclosed.

Judicial Watch, Inc. v. Department of Justice, "Judicial Watch II", 2005 U.S. App. LEXIS 28730 (D.C. Cir. Dec. 27, 2005).
Under the Freedom of Information Act, factual material that was attorney work product contained in email messages did not have to be separated from opinions and analysis also contained in the email. The court determined that the entire email messages were constituted as opinions attorney work product and did have to be disclosed.

Jinks-Umstead v. England, "Jinks II", 2005 U.S. Dist. LEXIS 17674 (D.D.C. Aug. 24, 2005).
The magistrate judge evaluated documents that the Secretary of the Navy claimed were privileged and the judge determined that the plaintiff did not require an email message sent from defendant's counsel to the director of information systems in which general information regarding their information systems were requeted.

Cellco Partnership v. Nextel Communication, Inc., 2004 U.S. Dist. LEXIS 12717 (S.D.N.Y. July 9, 2004).
An advertising agency used by defendant was required to provide plaintiff with 7 emails that were from an employee of defendant and contained advice of counsel; however, one email was exempt as it relayed legal advice pertaining to another litigation, which was determined to be work product.

Portis v. City of Chicago, "Portis I", 2004 U.S. Dist. LEXIS 12640 (N.D. Ill. July 6, 2004).
Plaintiff was ordered to produce a database, as the court determined that doing so would not reveal plaintiffs' litigation strategy. Defendant was ordered to pay half of the plaintiffs' costs in order to obtain access to this database. The cost was determined based on the plaintiffs' consultants' and paralegals' hourly billing rates.

Baptiste v. Cushman & Wakefield, Inc., 2004 U.S. Dist. LEXIS 2579 (S.D.N.Y. Feb. 20, 2004).
Defendant, claiming attorney-client privilege, requested the court compel plaintiff to return an email message, to which the court agreed in part. The court found that, although the email message was not written by or addressed to an attorney, the first four paragraphs of the email message were protected by attorney-client privilege as they expressed advice given by defendant's outside counsel. The court also concluded that the final paragraph of the email message was not protected as it did not contain any legal advice and that the defendant had not waived its attorney-client privilege regarding the information contained in the first four paragraphs. The court ordered plaintiff and plaintiff's counsel to return all copies of the email message to defendant and defendant to redact the email message to only include those portions that were not privileged and provide the redacted form to plaintiff.

Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503 (S.D. Cal. 2003).
Defendant moved to compel plaintiff's witness statements and internal email communications to which the court determined that witness statements were protected as work product as they were acquired in an effort to determine whether plaintiff should bring the suit against defendant. The court also held that defendant did not substantiate its need for such information as defendant could depose the witness. In addition, plaintiff moved to compel a document inadvertently produced by defendant, claiming it was discoverable as it proved defendant had made design changes to its product after obtaining plaintiff's confidential information. Plaintiff's motion was denied as the court determined that said document was protected as attorney-client privilege as it was created in a move to seek legal advice from counsel.

United States v. Rigas, 2003 WL 22203721 (S.D.N.Y. Sept. 22, 2003).
The court determined that by inadvertently disclosing privileged information when reasonable precautions against disclosure were taken, privilege was not waived.

St. Paul Fire & Marine Ins. Co. v. SSA Gulf Terminals, Inc., 2002 U.S. Dist. LEXIS 11776 (E.D. La. June 10, 2002).
Plaintiff moved for a protective order claiming that email messages requested by defendant were work product. The court reviewed these email messages and other documents in camera and found that many of them were protected as work product as they contained legal strategies.


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