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E-Mails Regarding Potential Litigation Protected from Disclosure
Description Trial court ruled that the defendant in a suit involving goods damaged in shipment did not have to give copies of e-mails that contained evaluations of possible liability in anticipation of litigation to the plaintiff. Regular e-mail communications among defendant employees regarding the matter prior to litigation did have to be given to plaintiff.
Topic Cyberlaw
Key Words Evidence; E-Mail; Work Product
C A S E   S U M M A R Y
Facts Prebena shipped equipment that suffered extensive damage while in Universal's possession. Prebena sued Transit and sought production of copies of e-mails between Universal and another party. Universal asserts that the e-mails are protected as work products. The trial court had to rule on the motion to require production of the e-mails.
Decision Motion denied. For work product to be protected it "must (1) be a document or tangible thing; (2) that was prepared in anticipation of litigation, and (3) was prepared by or for a party, or by or for his representative." The e-mails concerned an after-the-accident evaluation of Universal's potential liability. Since Universal knew there could be litigation, this work was done for it in anticipation of possible litigation, hence it is protected work product. The fact that it was transmitted by e-mail does not matter. However, Universal must give Prebena copies of e-mails that occurred earlier as employees discussed the accident; that is not protected work product.
Citation Prebena Wire Bending Machinery Co. v. Transit Worldwide Corp., 1000 WL 1063216 (Slip Copy, S.D.N.Y.)

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