IP: Log it or lose it

Court holds that an incomplete privilege log results in a waiver of the attorney-client privilege

The U. S. District Court for the Eastern District of Wisconsin recently addressed the importance of privilege logs and updating them in its Oct. 5 decision in Nordock, Inc. v. Systems Inc., in which the court held that the failure to identify withheld documents on a privilege log resulted a waiver of the attorney-client privilege.

In most civil litigation, there is a document request or an interrogatory that requests the disclosure of attorney-client privileged information. In the IP context, the information sought might include opinions on the validity or infringement of a patent, patent claim scope, or trademark; analysis of the prior art; and the like. The typical, nonspecific response to such a request is an objection and the assertion of the privilege, such as: “Defendant objects to this request because it seeks information that is the subject of the attorney-client privilege and/or the work-product doctrine.”

Contributing Author

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Donald Rupert

Donald W. Rupert is a litigation partner at Marshall, Gerstein & Borun LLP.  For over 35 years, Don has litigated patent and other...

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