Case Got Your Tongue? Restless Natives, Whitecaps & a 3-Hour Tour

This month’s summaries produced a lot of interesting cases and also told me one thing; it’s still mostly about ignorance. Companies – and the firms that represent them – are continuing to get into hot water because they either don’t know the rules, or don’t comply with them when they do.

A couple of themes became apparent, so I’m using four cases (two each) to address the areas of privilege and native formats.

IT’S MY PRIVILEGE TO DEPOSE YOU

Imagine you’re in the middle of a deposition and the first hint that you’ve inadvertently disclosed privileged information is when your opponent produces it. What do you do? Is that considered a waiver? Those are the facts of Coburn Group, LLC v. Whitecap Advisors LLC, 2009 U.S. Dist. LEXIS 69188 (N.D. Ill. Aug. 7, 2009). The first thing to assume; your opponent, if they’re on the ball, will virtually always try to claim it’s a waiver because that’s simply good strategy.

However, the judge didn’t see it that way and took into account new rule 502(b)(1) (new as of 9/14/08) and focused on the factors of mistaken production and the reasonable steps taken to correct it.

Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS 68128 (D.N.J. Aug. 4, 2009) – I don’t care what document is at issue; even a litigation hold letter as in the facts in this case. Claims of privilege and/or work product doctrine notwithstanding, if it’s relevant to the proceedings it may become fair game. Act accordingly.

THE NATIVES ARE GETTING RESTLESS

There still seems to be a lot of chatter regarding metadata. It’s an area ripe for manipulation and abuse because a lot of people don’t really know what it is or how it’s used. Craig & Landreth, Inc. v. Mazda Motor of America, Inc., 2009 U.S. Dist. LEXIS 66069 (S.D. Ind. July 27, 2009) is more of a traditional case in that the metadata is being requested because it’s relevant to the proceedings. But see Covad Communications Co. v. Revonet, Inc., “Covad III”, 2009 U.S. Dist. LEXIS 75325 (D.D.C. Aug. 25, 2009) which uses metadata virtually as a cross-referencing tool to address an inconsistency.

Metadata is not one of those terms I repeat often for entertainment value. When relevant, it can make or break a case.

Be careful when you wade into those legal waters…

[Has anyone else noticed that I use a lot of metaphors that involve H2O? What’s that about???]