Presentation on theme: "92 S.W.3d 419 (Tex. 2002) Megan Marquardt November 22, 2010"— Presentation transcript:
1 92 S.W.3d 419 (Tex. 2002) Megan Marquardt November 22, 2010 In re Nitla S.A. DE C.V.92 S.W.3d 419 (Tex. 2002)Megan MarquardtNovember 22, 2010
2 Parties Nitla Bank of America Mexican pharmaceutical company Claims that Bank of America misappropriated over $24 million of Nitla’s funds on depositBank of AmericaWants Nitla’s counsel disqualified
3 Facts Nitla asked BOA to produce documents BOA asserted attorney-client and work-product privileges - would be irreparably harmed if Nitla’s counsel reviewed the documentsTrial court determined that BOA should produce many of the documentsBOA wants trial court to issue stayBOA notified Nitla that it would seek mandamus relief, but Nitla’s counsel relied on trial court’s order and reviewed the documentsBOA filed for mandamus reliefCourt of appeals ultimately held that the documents were privilegedBOA moved to disqualify Nitla’s counselTrial court denied motion, BOA sought mandamus reliefAppellate court grants motion
4 eDiscovery legal framework 26(b)(5)(B) - if a receiving party is notified of a mistaken disclosure by the adversary, then the receiving party “must not use or disclose the information until the claim is resolved”37(b)(2) - Failure to Comply with a Court OrderModel Rules of Professional Conduct 4.4(b)FRE Attorney-Client Privilege and Work Product; Limitations on Waiver
5 Analysis of Case “Disqualification is a severe remedy.” Deprives a party of its chosen counsel and can disrupt court proceedingsNitla’s counsel didn’t violate any rules - they reviewed the documents based on court orderTo disqualify opposing counsel, moving party must show that:Opposing counsel’s reviewing the privileged documents caused actual harm to the moving party; andDisqualification is necessary, because the trial court lacks any lesser means to remedy the moving party’s harm
6 Issues regarding eDiscovery BOA didn’t “mistakenly” disclose privileged informationtrial court handed the documents over before BOA had a chance to seek mandamus reliefBOA notified Nitla that they would be seeking mandamus relief and asked Nitla not to review or distribute the documentsNitla relied on trial court’s order and reviewed documents anywayRule 26 allows receiving party to go to court under seal to get a determination of whether the information is protected
7 Conclusion Court of appeals’ order vacated BOA could only show that reviewing the documents had enabled Nitla’s counsel to identify 4 new witnesses to depose
8 Questions/Class Discussion Do you think the trial court should have issued a stay on production until the appellate court had a chance to review?Court of appeals held that most of the documents were, in fact, privilegedDid Nitla violate rule 26(b)(5)(B) when they reviewed the documents before the claim was resolved?
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