Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of June 22-28. Here’s what’s happening.
Last week we explored a case in which the plaintiff challenged several aspects of the defendant’s privilege log, resulting in a judge ordering the defendant to redo portions that lacked context. This week we have another privilege log case, except this time there was enough context in the defendant’s log to help the plaintiff beat one motion for summary judgment.
On the EDRM blog, Michael Berman writes about Conner v. Stark & Stark, P.C., in which the plaintiff, a former accounts payable and receivable manager, sued for wrongful termination, asserting disability discrimination and retaliation under New Jersey law and FMLA claims.
Conner’s supervisor testified that her termination was first considered on June 26 or 27, 2023. The court writes that according to the defendant, the plaintiff’s absence from the office on June 26, 2023—after she had been cleared by her doctor to return to work—led to her missing an important directive from Stark & Stark’s managing shareholder to initiate a $1.9 million wire transfer for a client.
Despite this testimony, “[d]efendant’s privilege log in this matter suggests Plaintiff’s termination was being discussed as early as May 23, 2023, and a human resources representative testified that “earlier in June” there was a direction to work out the logistics and process for terminating Plaintiff…. The timing of Defendant’s communication with outside counsel on May 23 is also significant in that it occurred on the same day that Townsend e-mailed Plaintiff asking whether she was cleared to return to work, advising her about medical leave and the need to be in the office more regularly…. Based on this timeline, a reasonable jury could conclude that discriminatory intent motivated Defendant’s decision to terminate Plaintiff.”
The court ultimately found the plaintiff had pointed to evidence sufficient to survive summary judgment on the state law claims, writing that “a reasonable jury could find that Defendant made the decision to terminate Plaintiff before the $1.9 million wire transfer incident.”
Takeaway: While communication with outside counsel is privileged and needs to be indicated as such on privilege logs, parties should be aware of all privilege log entries before preparing witnesses for testimony to avoid gaps or inconsistencies that could undermine their position.
Other recent eDiscovery news and headlines:
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