Notable Cases and Events in E-Discovery: March / April

LIMITING SCOPE OF EDISCOVERY

a U.S. Court of Appeals for the Eighth Circuit ruling upholding a district court’s order limiting the scope of discovery and imposing sanctions against the plaintiff for disregarding the court’s orders and repeatedly engaging in litigation issues decided by the court.

Decision: The Eighth Circuit affirmed the district court’s order limiting the scope of plaintiff’s general causation phase discovery in this products liability suit alleging that plaintiff’s husband’s use of Enbrel caused his myelodysplastic syndrome (MDS) which resulted in his death. The court held that the district court did not abuse its discretion in limiting the scope of plaintiff’s general causation discovery; the district court’s basis for weighing proportionality was based on common sense and the search conducted by plaintiff’s counsel during the discovery hearing; the district court did not rely on misrepresented facts by Amgen in issuing its discovery orders; any error in failing to provide plaintiff an opportunity to cross-examine Amgen’s expert was harmless; the district court was under no obligation to order Amgen to provide plaintiff with materials the FDA requests—but does not require—from pharmaceutical companies when the agency evaluates safety risks; and plaintiff’s assertion that the district court’s order limiting the scope of her discovery prejudiced her case was rejected.

The court also held that the district court did not abuse its discretion by imposing sanctions under Rule 11 and by imposing sanctions under 28 U.S.C. 1927. Finally, the district court properly exercised its inherent power to sanction plaintiff’s counsel, and here was no abuse of discretion

PRODUCTION OF DOCUMENTS AT STATE LEVEL BUT NOT FEDERAL

a U.S. District Court for the District of Kansas decision requiring production of documents included on defendants’ privilege logs that cited state but not federal privileges as the basis for withholding the documents when the information contained therein related to both plaintiff’s federal and state claims.

Decision: Defendant seeks the production of that information on the basis that plaintiff (1) failed to establish that the withheld information is privileged and (2) waived any privilege by either putting the subject of the discovery requests at issue or sharing the requested information with a third party. Defendant also contends that it has a substantial need for the information such that plaintiff remains obligated to produce responsive documents3 notwithstanding the application of the work-product privilege. For the reasons discussed below, the court grants in part and denies in part defendant’s motion.

COMMON INTEREST PRIVILEGE & PRODUCTION

a U.S. District Court for the Southern District of California decision requiring production of an email after the magistrate judge found that the email failed to qualify for the common-interest privilege because the sender was not represented by counsel.

Decision: While this Court was not able to locate any Ninth Circuit precedent that explicitly requires both parties be represented by separate counsel, nor was there any precedent that extended the benefits of the common interest exception to the attorney client privilege when the disclosure at issue involved an unrepresented third-party employed by a separate entity…. Review of case law regarding common interest exception within the Ninth Circuit reveals that in analogous cases where the common interest exception was applied in the attorney-client (as opposed to work-product) context, the parties on both sides of the equation were represented by counsel. Id. at *5 (emphasis in original).