In This Issue: -

- Attorney-Client Privilege/Work Product Decisions:

..Decisions Protecting Against Disclosure

..Decisions Ordering Disclosure

- Spoliation and Preservation Decisions:

..Sanctions Denied/Reversed

..Sanctions Granted/Upheld

..Other Spoliation Rulings

- Cost-Shifting Decisions:

..Ordering Cost Shifting

..Denying Cost Shifting

- Other E-Discovery Decisions

- Excerpt from Decisions Protecting Against Disclosure:

Clawback Allowed for Inadvertently Produced Document

Johnson v. Ford Motor Co., No. 3:13-cv-06529, 2015 WL 1650428 (S.D. W. Va. Apr. 14, 2015). In this unintended acceleration defect class action, Magistrate Judge Cheryl A. Eifert of the U.S. District Court for the Southern District of West Virginia denied the plaintiffs’ motion to challenge the designation of certain documents and to compel, holding that a document inadvertently produced by Ford Motor Company during discovery did not waive the attorney-client privilege and was subject to clawback under Federal Rule of Evidence 502(b). Looking at West Virginia, Michigan and federal law, the court first determined that the communication was protected by attorney-client privilege because it constituted legal advice. To determine whether Ford had waived the privilege when it first produced the document, the court applied a multifactor test governed by the Advisory Committee Notes to Rule 502(b). The court determined that Ford had taken reasonable precautions in its two-tiered review. Furthermore, of the 2,700 documents Ford had produced, the document was the only privileged document that was inadvertently disclosed. The court also found that confidentiality could be restored where the document at issue had not been made part of the record or used in any deposition. Finally, although the plaintiffs argued that the document supplied crucial information that could not be replicated, the court held that the focus of the Rule 502 fairness analysis was not whether the privilege deprives parties of pertinent information. Therefore, although the length of time the plaintiffs had possessed the document weighed somewhat in their favor, the majority of factors weighed in favor of preserving the privilege. As such, Ford was entitled to claw back the document.