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Attorney-Client Privilege

Digene Corp. v. Third Wave Technologies, Inc., 2008 U.S. Dist. LEXIS 10816 (W.D. Wisc. Feb. 8, 2008).
Plaintiff's executives and outside counsel took a survey and their responses were documented in a PowerPoint presentation, however, the court found that this presentation was not protected by attorney-client privilege as it was not a legal presentation and referred to business strategy.

Apsley v. Boeing Co., " Boeing II", 2008 U.S. Dist. LEXIS 5274 (D. Kan. Jan. 22, 2008).
The court denied Plaintiff's request for an in camera review of documents that Defendant's counsel had marked as privileged because Plaintiffs did not present any evidence that could show that Defendant's counsel should be doubted.

United States v. Warshak, "Warshak II", 2007 U.S. Dist. LEXIS 81863 (D. Ohio Nov. 5, 2007).
The government reviewed seized electronic documents for privileged material without performing a keyword search, which the court deemed would have been more effective, however, the court refused to dismiss the Defendants' indictment based on this.

Muro v. Target Corp., "Muro II", 2007 U.S. Dist. LEXIS 81776 (N.D. Ill. Nov. 2, 2007).
A privilege log that was produced was not required to list every email within an email string sent to counsel based on Fed. R. Civ. P. 26(b)(5)(A).

Scott v. Beth Israel Medical Center, Inc., 2007 N.Y. Misc. LEXIS 7114 (N.Y. Sup. Ct. Oct. 17, 2007).
Defendant had a policy in place that Plaintiff was aware of that stated that any email messages sent through Defendant's email server belonged to Defendant; therefore, emails that Plaintiff sent to his attorney utilizing the Defendant's email server were not protected by attorney-client privilege or work product doctrine.

In re Ebay Seller Antitrust Litigation, 2007 U.S. Dist. LEXIS 75498 (N.D. Cal. Oct. 2, 2007).
Defendant sent document retention notices to 600 employees and, although they were not required to produce copies of these notices, they did have to disclose a list of the employees that received these notices and to inform the court what the employees had done upon receipt of these notices.

United States v. Warshak, 2007 U.S. Dist. LEXIS 61358 (S.D. Ohio Aug. 21, 2007).
The court ordered that the government show that none of the evidence they obtained during the execution of the search warrant at Defendants' facilities was privileged information.

In re Vioxx Products Liability Litigation, 2007 U.S. Dist. LEXIS 60299 (E.D. La. Aug. 14, 2007).
The U.S. Court of Appeals for the Fifth Circuit ordered that a special master review approximately 500,000 pages of email to determine attorney-client privilege. The two parties shared the $400,000 cost for the special master's efforts.

Pinnacle Pizza Co. v. Little Caesar Enterprises, Inc., 2007 U.S. Dist. LEXIS 48845 (D.S.D. Jul. 3, 2007).
The recently amended Fed. R. Civ. P. 26(b)(5) showcasing that inadvertent disclosure of privileged electronic information did not automatically waive privilege was applied to this matter and included all types of discovery.

Kingsway Financial Services v. Pricewaterhouse-Coopers LLP, 2007 U.S. Dist. LEXIS 46660 (S.D.N.Y. June 27, 2007).
Attorney-client privilege was waived for an email and its attachment that was sent from Plaintiff to its attorney, as the attachment contained copies of a letter to the court that was under seal.

Miles v. Wal-Mart Stores, Inc., 2007 U.S. Dist. LEXIS 46747 (W.D. Ark. June 26, 2007).
The court ordered Defendant to produce those documents that were listed in its privilege log that were authored or received by Plaintiff. Defendant was also ordered to provide affidavits detailing the privilege claimed for all of the other documents listed in the privilege log.

Wachtel v. Guardian Life Ins., "Wachtel II", 2007 U.S. Dist. LEXIS 43842 (D.N.J. June 18, 2007).
Plaintiffs made a sufficient prima facie in order to support an in camera examination of privileged documents.

Pritchard v. County of Erie, "Pritchard III", 2007 U.S. Dist. LEXIS 42528 (W.D.N.Y. June 12, 2007).
Defendant did not waive attorney-client privilege with regards to an email between a county attorney and Defendant that was also distributed to Sheriff's Department officials because the officials had a need to know regarding the information contained within the email.

Fifty-Six Hope Road Music, Ltd. v. Mayah Collections, Inc., 2007 U.S. Dist. LEXIS 43012 (D. Nev. June 11, 2007).
Rather than ordering Plaintiff to enter thousands of emails on a privilege log due to the burden this would cause, the court instead ordered Plaintiff to file an affidavit stating their good-faith effort to produce non-privileged documents. The court also ordered the Plaintiff to state the number of non-privileged documents being withheld and to declare that, for attorney-client documents, only attorneys and Plaintiff were parties to the communications.

Muro v. Target Corp., 2007 U.S. Dist. LEXIS 41442 (N.D. Ill. June 7, 2007).
The court found that each separate communication within an email string had to be listed on a privilege log to allow the court and the opposing party to assess whether it was attorney-client privilege.

United States v. National Association of Realtors, 2007 U.S. Dist. LEXIS 37519 (N.D. Ill. May 22, 2007).
An entire email from Defendant's in-house counsel to multiple members of Defendant's staff in which antitrust law advice from outside counsel was provided was found to be privileged.

Gragg v. International Management Group, 2007 U.S. Dist. LEXIS 25780 (N.D.N.Y. Apr. 5, 2007).
Defendant waived attorney-client privilege after assigning a non-attorney to perform the document collection, the assistant subsequently sent a CD containing the collected document to outside counsel, and the outside counsel then sent the CD to Plaintiff's counsel without reviewing the documents.

Expert Choice, Inc. v. Gartner, Inc., 2007 U.S. Dist. LEXIS 21208 (D. Conn. Mar. 27, 2007).
The court performed an in camera review of email documents and found that many were improperly held in their entirety when only privileged information should have been redacted.

In re Napster, Inc. Copyright Litigation, "Napster II", 2007 U.S. App. LEXIS 5836 (9th Cir. Mar. 14, 2007).
The court found that, in order for the crime-fraud exception to apply to privileged attorney-client communications, the seeking party must prove by a preponderance of evidence that the exception applies, and the opposing party must be given adequate time to show that the exception does not apply.

Pierce v. Girl Scout of Greater N.Y., Inc., 2007 U.S. Dist. LEXIS 16499 (S.D.N.Y. Mar. 9, 2007).
Defendant inadvertently produced a privileged email in which legal advice was sought and Plaintiff was ordered to destroy the email.

Hotwork-USA, LLC v. Excelsius Int'l, Ltd., 2007 U.S. Dist. LEXIS 19803 (E.D. Ky. Mar. 2, 2007).
Plaintiff inadvertently disclosed an email describing a conversation with its counsel in which counsel asked for a list of items to request from defendant, however, the court found that the disclosed email did not contain legal advice and was not privileged.

Capitano v. Ford Motor Co., 2007 N.Y. Misc. LEXIS 453 (N.Y. Sup. Ct. Feb. 26, 2007).
Although Plaintiff held that litigation hold instructions from Defendant's attorneys to the company's employees regarding record management could show that spoliation occurred, the court found that such communications were privileged.

Heartland Surgical Specialty Hosp., LLC v. Midwest Division, Inc., 2007 U.S. Dist. LEXIS 13386 (D. Kan. Feb. 23, 2007).
The parties entered into a protocol and, based on this protocol, Plaintiff was ordered to add information to its privilege logs to conform with this protocol.

Amersham Biosciences Corp. v. PerkinElmer, Inc., 2007 U.S. Dist. LEXIS 6841 (D.N.J. Jan. 31, 2007).
The court reversed an order to return inadvertently produced documents until further consideration had occurred. The court found that the magistrate judge's finding that reasonable precautions had been taken to avoid inadvertent disclosure of the privileged documents was incorrect.

Laun v. Laun, 2007 U.S. Dist. LEXIS 4500 (N.D. Ind. Jan. 19, 2007).
A non-party attorney claimed attorney-client privilege, however, the court found this to be an insufficient response to the subpoena and ordered the attorney to produce responsive documents or a privilege log.

MLC Automotive, LLC v. Town of Southern Pines, 2007 U.S. Dist. LEXIS 2841 (M.D.N.C. Jan. 11, 2007).
Communications of an engineer, who was not a litigation consultant, with attorneys for one of the parties were attorney-client privileged due to the fact that the engineer was providing information required to obtain permits.

Raba v. Suozzi, 2007 U.S. Dist. LEXIS 2099 (E.D.N.Y. Jan. 11, 2007).
Documents containing legal advice were found to be privileged.

Truckstop.net, L.L.C. v. Sprint Communications Co., L.P., 2007 U.S. Dist. LEXIS 1536 (D. Idaho Jan. 8, 2007).
A portion of an email that described legal advice from counsel was found to be privileged, while another portion of the email explaining the real world impact of that advice was not privileged.

Baran v. Walsh Construction Co., 2007 U.S. Dist. LEXIS 953 (N.D. Ill. Jan. 4, 2007).
Defendant was ordered to produce an email with its in-house counsel because counsel was actually acting as head of Defendant's insurance department and the email did not contain legal advice.

In re JDN Real Estate--McKinney L.P., 2006 Tex. App. LEXIS 11087 (Tex. App. Dec. 28, 2006).
The appellate court performed an in camera review of documents and communications between a redevelopment agency and a city regarding research by their shared attorney and found that they were privileged.

The Bedford, LLC v. Safeco Insurance Co. of America, 2006 Wash. App. LEXIS 2702 (Wash. Ct. App. Dec. 11, 2006).
The appellate court found that the trial court's judgment in favor of Defendant required further consideration due to the fact that Defendant had submitted a privilege log that did not provide details regarding the attorney or a basis for the privilege claim. The appellate court found that the trial court's refusal to review such documents in camera was an abuse of discretion.

Kovacs v. Hershey Co.,, 2006 U.S. Dist. LEXIS 82963 (D. Colo. Nov. 14, 2006).
The magistrate judge reviewed documents in camera that Defendant claimed to be privileged and found that Defendants did not adequately establish that redacted portions of documents were subject to the attorney-client privilege.

Estes v. Health Ventures, 2006 U.S. Dist. LEXIS 80719 (S.D. Ill. Nov. 3, 2006).
The court found that the crime-fraud exception to the attorney-client privilege did not apply to a conversation between an employee of Defendant and its in-house counsel in which terminating Plaintiff's employment was discussed.

Delta Financial Corporation v. Morrison,, 2006 N.Y. Misc. Lexis 3115 (N.Y. Sup. Ct. Oct. 24, 2006).
A third party replied to an email from his attorney in which a request pertaining to discovery from a litigant's attorney was made and this reply was also inadvertently sent to the litigant's attorney, however, this communication remained privileged.

Transocean Capital, Inc v. Fortin, 2006 Mass. Super. LEXIS 504 (Mass. Super. Ct. Oct. 20, 2006).
A board member utilized his company computer system to email his outside counsel and this email was found to be privileged, as the company did not inform its employees that email on the company computer systems was not confidential.

Long v. Marubeni America Corp., 2006 U.S. Dist. LEXIS 76594 (S.D.N.Y. Oct. 19, 2006).
Defendant's employees emailed their attorney utilizing private email accounts, however, these emails were sent from company computers and thus the emails lost attorney-client privilege and work product doctrine protection.

Leone v. Fisher, 2006 U.S. Dist. LEXIS 75571 (D. Conn. Oct. 18, 2006).
Plaintiff's attorney was ordered to respond to Defendant's third party subpoena by producing documents pertaining to Plaintiff, such as communications with Plaintiff's husband, as these documents were not attorney-client privileged.

OM Group, Inc. v. Mooney, 2006 U.S. Dist. LEXIS 76007 (N.D. Ohio Oct. 18, 2006).
Plaintiff's general counsel communicated with the SEC, however, as these communications were not relevant to Defendant's counterclaim against Plaintiff, they were not disclosed.

Municipal Revenue Services v. Xspand, Inc., 2006 U.S. Dist. LEXIS 70940 (M.D. Pa. Sept. 28, 2006).
Communications with an attorney who was not retained to provide legal advice were not privileged.

Gilliland v. Geramita, 2006 U.S. Dist. LEXIS 65546 (W.D. Pa. Sept. 14, 2006).
The company went out of business, thus, documents that were withheld based on attorney-client privilege were ordered to be disclosed.

National Economic Research Associates, Inc. v. Evans, 2006 Mass. Super. LEXIS 371 (Mass. Super. Ct. Aug. 3, 2006).
Defendant utilized his company computer to email his attorney through his private email account and remnants of these emails that remained on the company computer remained privileged.

Delta Financial Corp. v. Morrison, 2006 N.Y. Misc. LEXIS 2052 (N.Y. Sup. Ct. Jul. 26, 2006).
Emails between a CFO and auditors requesting tax advice were not privileged, even though the attorney for the company was included in the communication, as the purpose of the communication was not to discuss legal issues.

Trudeau v. New York State Consumer Protection Board, 2006 U.S. Dist. LEXIS 61901 (N.D.N.Y. Jul. 21, 2006).
Plaintiff inadvertently made public an attorney-client privileged document provided by Defendant, however, as Defendant was also careless in providing this document to Plaintiff, it was found that they waived their right to confidentiality.

Hernandez v. Esso Std. Oil Co., 2006 U.S. Dist. LEXIS 47738 (D. P.R. Jul. 11, 2006).
Defendant claimed that privileged documents had been erroneously disclosed to Plaintiff, however, the court utilized a "pragmatic approach" and determined that privilege was waived.

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