Inadvertent Disclosure CPRA

CPRA, Darren Chaker

Inadvertent disclosure under the CPRA and restraining order, Darren Chaker posts about an article concerning Newark Unified Sch. Dist. v. Superior Court , 2015 WL 4594095 (Cal. Ct. App. July 31, 2015). In this inadvertent document release case, the plaintiff sought injunctive relief against the defendant, requiring the return or destruction of privileged, exempt or confidential records that had been improperly released. The plaintiff sought a temporary restraining order (TRO) shortly after filing a complaint, but the defendant argued that, under a legislative law, the “disclosure” of a public record constitutes a waiver of applicable exemptions from disclosure. Examining past holdings, the court ruled that the term “waiver” did not include accidental, inadvertent disclosures, which included the electronically stored materials produced during discovery. In addition, the court found that an attorney who receives inadvertently produced documents during discovery has an ethical duty to “refrain from unnecessary review of the documents, notify opposing counsel, and return the documents upon request”. The court vacated the lower court’s decision to deny the TRO and ordered the defendant to refrain from dissemination of inadvertently produced privileged documents. See article here.

CPRA, Darren Chaker

Darren Chaker, CPRA, allows access to all public records

Darren Chaker also notes, under specified circumstances, the CPRA affords agencies a variety of discretionary exemptions which they may utilize as a basis for withholding records from disclosure. These exemptions generally include personnel records, investigative records, drafts, and material made confidential by other state or federal statutes. In addition, a record may be withheld whenever the public interest in nondisclosure clearly outweighs the public interest in disclosure. When an agency withholds a record because it is exempt from disclosure, the agency must notify the requester of the reasons for withholding the record. However, the agency is not required to provide a list identifying each record withheld and the specific justification for withholding the record.

When a record contains exempt material, it does not necessarily mean that the entire record may be withheld from disclosure. Rather, the general rule is that the exempt material may be withheld but the remainder of the record must be disclosed. See publication.

Ediscovery Expert Fees

While reviewing ediscovery, Darren Chaker, found an article about Gen. Protecht Grp., Inc. v. Leviton Mfg. Co., 2015 WL 4988635 (D.N.M. Aug. 3, 2015) In this patent infringement case, the defendant alleged that the plaintiffs had infringed upon the defendant’s specialized patents, while the plaintiffs alleged that the defendant had committed infringement. In addition, the plaintiffs argued that the defendant’s claim was baseless because the defendant knew that its argument was flawed, as it did not have any “well-established law regarding implied licenses” to support the claim. The court found that the defendant’s claim was not baseless, as the standard for a baseless claim is when “no reasonable litigant could reasonably expect success on the merits.” The lower court ultimately found for the plaintiffs, but the cost of recoverable attorney’s fees should include paralegal and technical specialist fees involved in the case. On that issue, the judge agreed with the plaintiffs, stating that “while technology specialists’ duties are not strictly legal in the traditional sense, the court believes that these technicians provide meaningful value to law firms and, ultimately, clients during litigation; those contributions should not go overlooked.” The court therefore included technology specialist fees in its calculation of attorneys’ fees, subject to the same restrictions placed on other attorney’s fees—that the technology specialists’ work pertained to the lawsuit at hand, and the hours were reasonable. However, ultimately the judge did not agree to adjust the lodestar fee amount in favor of the plaintiffs as he felt the overall success of the plaintiffs’ success did not warrant a sufficient amount to see an increase in award fees. The entire article is here.

Litigation Hold Policy Avoids Sanctions

In a new article found, Darren Chaker reports about New Orleans Reg’l Physician Hosp. Org., Inc. v. United States, 2015 WL 5000512 (Fed. Cl. Aug. 21, 2015) In this breach of contract case, the plaintiff alleged that the defendant refused to provide promised reimbursements due to contract modifications and directives that were unilaterally taken without the plaintiff’s agreement. During discovery, the plaintiff sought a motion to compel, claiming the defendant’s document productions were deficient and the defendant should therefore be required to redo the searches with more rigorous search protocols. The defendant opposed, arguing that the plaintiff did not confer in good faith prior to filing the motion. The court found that the defendant did not put into place a systematic, reliable plan to find and produce all relevant documents, and the plaintiff’s request for the implementation of new search parameters was granted. As such, the motion to compel discovery was not granted until the defendant has the opportunity to produce documents in line with the new search parameters. In regards to the plaintiff’s request for attorney’s fees, the court felt that the final decision to award fees would depend upon the ruling on the motion to compel and therefore denied, with the possibility for the plaintiff to request fees in the future. To view the entire blog post, see here.