Skadden, A rps, Slate, Meag her & Flom LLP and Af liates skadden. com
October 2016
The E-Discovery Digest
A periodic publication on notable decisions
relating to key discovery topics
Attorney-Client Privilege/Work-Product Decisions
Decisions Protecting Against Dis closure
Emails Prote cted by Privilege Even if At torney Not the Author or
Primary Recipient
Rowan v. Sunower El ec. Power Corp., No. 15- CV-9227-JWL-TJJ,
2016 WL 3743102 (D. Kan. July 13, 2016)
Magistrate Judge Teresa J. James of the U.S. District Court for the District of Kansas
held that defendant Power Constructors, Inc. (PCI) had properly claimed attorney-client
privilege with respect to emails for which an attorney was not the author or primary
recipient. The plainti in the case had challenged emails on PCI’s privilege log that were
not written or sent by PCI’s in-house counsel, including those on which in-house counsel
was carbon copied. The court rejected the plainti’s arguments, finding that privilege can
properly attach to documents transmitted between nonattorney employees of the corpo-
ration if the communications are confidential and are for the purpose of obtaining legal
advice from an attorney. The court also held that the plainti waived its argument that
PCI’s privilege log descriptions were insucient by failing to raise it in a timely fashion
after receiving the log. The court, however, ordered PCI to provide additional information
with respect to privilege log entries whose descriptions indicated they were “calendar
entr[ies],” as “it is not evident on its face how a calendar entry contains a communication
made in confidence for the purpose of giving or obtaining legal advice.”
Afdavit o f In-House Counsel Su fcient to Establ ish Documents Privi leged
Klaassen v. Atkinson, No. 13-2561-DDC, 2016 WL 38 81334 (D. Kan. July 18, 2016)
Magistrate Judge K. Gary Sebelius of the U.S. District Court for the District of Kansas
denied a motion to compel the production of documents listed on the defendants’ privi-
lege log, finding that the defendants met their burden of establishing that the documents
were shielded from discovery by the attorney-client privilege based in large part on the
adavit of the defendants’ in-house counsel. The plainti filed suit against the Univer-
sity of Kansas Medical Center (KUMC) and various high-ranking KUMC ocials in an
employment dispute alleging retaliation. The court found that the defendants suciently
1 / Attorney-Client Privilege/
Work-Product Decisions
Decisions Protecting Against
Disclosure
Decisions Ordering Disclosure
3 / Spoliation Decisions
Decisions Imposing Sanctions
Decisions Declining to
Impose Sanctions
5 / Form/Format of
Discovery Responses
6 / Other Discovery Decisions
7 / Contacts
