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Litigation: Ignoring privilege log obligations may prove costly

Practical tips may help in-house and outside counsel avoid privilege waiver

For many lawyers, constructing an appropriate privilege log is a mere afterthought in the overall discovery process. Several reasons exist for this privilege log apathy. Some in-house counsel routinely draft or approve written discovery responses, but simply do not exhibit the same level of detailed attention to privilege log preparation. Outside counsel often delegate this perceived grunt-work task to younger attorneys.  Complacency also develops when lawyers refuse to insist on a detailed privilege log from their adversaries out of fear that these adversaries will respond in kind. And some lawyers decide that legal strategy calls for keeping privilege claims intentionally vague and provide a general privilege log with no specifics.

Whatever the reason, courts are increasingly scrutinizing the adequacy of privilege logs and imposing sanctions, including waiver, for insufficient privilege log descriptions. Consequently, it is increasingly important for in-house and outside counsel to know their privilege log obligations, when a privilege log is required to be produced, and how to defend challenges to the adequacy of their privilege logs.

Privilege Log Requirements

The Federal Rules of Civil Procedure and several corresponding state procedure rules now require that so-called privilege logs accompany privilege objections to discovery requests. The rule’s purpose, in part, is to reduce the need for judges to review documents in camera to assess a party’s privilege claim. The rule does not state when a party must serve the privilege log but imposes a general requirement that it “describe the nature” of the putatively privileged document in a manner that “will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). The rule contains built-in flexibility regarding the privilege log’s content. For example, the specificity required for a relatively small amount of documents is not necessarily the same as that required for a voluminous set of privileged documents. That said, a blanket privilege claim is always insufficient.

Despite the rule’s flexibility, many courts impose strict privilege-log requirements either through their judicial decisions or via local rules. The 7th Circuit, for example, requires the privilege log to contain a document-by-document description of the privilege asserted and the facts supporting it. The supporting facts for each document must include 1.) the author’s name and job description; 2.) the names of all recipients (whether direct or copied) and their relationship with the producing party; 3.) general description of the document (e.g., email or memorandum); 4.) document’s date; and 5.) a general description of the document’s subject matter. See Novelty, Inc. v. Mountain View Marketing, Inc., 265 F.R.D. 370, 381 (S.D. Ind. 2009). The Local Rules for the Southern District of Mississippi similarly require the privilege log to contain the document’s name, a description of the document that includes “each requisite element of the privilege or protection asserted,” the date, author, recipient, and nature of the asserted privilege.

Courts diverge on other privilege-log requirements. For instance, some courts require the privilege log to include separate entries and descriptions for each email in a continuous email string while other courts require only one entry per email string. (For a good analysis of this issue, see Muro v. Target Corp.). Some judges require a description of the relationship between a sender and recipient while other judges do not. Yet, courts are consistent on other requirements. For example, courts routinely reject privilege logs that identify distribution lists rather than each employee on the list; and courts generally reject privilege logs that identify senders or recipients by general title rather than name and job duties.

Adverse Consequences

Ignoring one’s privilege log obligations could have dire consequences. The failure to produce a privilege log will likely result in waiver of all privileges asserted in the party’s discovery responses. Even where a party produces a privilege log, the failure to comply with courts’ requirements (and interpretations of Rule 26(b)(5)(A)) could result in sanctions under Federal Rule of Civil Procedure 37, including waiver of all asserted privileges. While some courts lament the “automatic mandatory voluntary waiver” consequence, see Magical Cruise Co. v. Dragovich, courts are increasingly finding waiver where privilege logs are insufficient.

Practical Tips

In-house and outside counsel can no longer handle privilege logs with apathy, and these practical tips should help in-house and outside counsel avoid privilege waiver:

  • Endeavor to provide a privilege log simultaneously with the party’s document production. If additional time is needed to prepare a detailed privilege log, secure a specific-date agreement from opposing counsel or the court.
  • Know your jurisdiction. Many jurisdictions have yet to define privilege log requirements, so seeking guidance at the case management conference will eliminate the need for guessing and avoid a waiver sanction.
  • If the privileged documents are voluminous and creation of a detailed privilege log will prove overly burdensome, seek a protective order from the court rather than submitting a general privilege-log chart with vague, categorical descriptions.
  • If the opposing party challenges your privilege log’s adequacy, and you perceive some vulnerability, suggest the court permit a revised privilege log before it jumps to the waiver sanction.
  • Use the privilege log to your advantage by including language that tracks the elements of the asserted privilege. Consider the privilege log from the judge’s viewpoint and ask whether, after reading your privilege log, she will feel compelled to agree with your privilege assertions without resorting to in camera review.
  • Do not merely identify recipients by the name of a distribution list (e.g., “Logistics Team”); rather, identify each employee within the distribution list.

Err on the side of caution. Despite the jurisdiction, a party should almost always identify the document’s subject matter, author, recipient(s), dates, and asserted privilege. The waiver consequence is simply too great to risk anything less.

Contributing Author

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Todd Presnell

Todd Presnell is a partner in the Nashville office of Bradley Arant Boult Cummings, LLP. He is licensed in Georgia and Tennessee and represents...

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