McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 633 of 633 results

Chapter: 55.1
Case Name: Chevalier-Seawell v. Mangum, Case No. CL14-2789, 2015 Va. Cir. LEXIS 146 (Va. 2015)
("'Parties seeking to challenge a claim of privilege have sparse information at their disposal. Because they do not actually have access to the privileged documents, they must rely on the opposing party's description of them in the privilege log. Accordingly, the descriptions in the log must satisfy the claiming party's burden.").

Case Date Jurisdiction State Cite Checked
2015-01-01 State VA

Chapter: 55.1
Case Name: United States v. J-M Mfg. Co., Inc., Civ. A. No. 11-cv-01691-MSK-MJW, 2013 U.S. Dist. LEXIS 14800, at *10 n.3 (D. Colo. Feb. 4, 2013)
(holding that the opinion work product doctrine can protect the results of testing; "The Court is mindful that the Defendants are forced to argue about the contents of documents they have not seen, and thus, they cannot be expected to point out specific content within the documents that support their contentions.")

Case Date Jurisdiction State Cite Checked
2013-02-04 Federal CO B 2/14

Chapter: 55.1
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 252 (E.D. Va. 2012)
("Parties seeking to challenge a claim of privilege have sparse information at their disposal. Because they do not actually have access to the privileged documents, they must rely on the opposing party's description of them in the privilege log. 'Accordingly, the descriptions in the log must satisfy the claiming party's burden.' Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 272 (E.D. Va. 2004).")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 55.1
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 272 (E.D. Va. 2004)
("For many years, courts have required that parties claiming privileges demonstrate entitlement thereto in a list or log that describes the ground of the putative protection with a degree of specificity that allows the opposing party to assess the assertion of the privilege against the applicable tests and to challenge any claim thought to be wanting. That assessment and any challenge, of course, must be done on the basis of the description contained on the log (or an equivalent pleading) because the opposing party does not have access to the putatively privileged document when seeking to mount a challenge to a privilege claim. Accordingly, the descriptions in the log must satisfy the claiming party's burden.")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA B 12/05

Chapter: 55.3
Case Name: Hopkins v. Board of County Commissioners of Wilson County, Kansas, Case No. 15-cv-2072-CM-TJJ, 2018 U.S. Dist. LEXIS 122356 (D. Kansas July 23, 2018)
("Due to the confusion when ACH's discovery responses were actually due, the Court declines to find ACH waived its claims of attorney-client privilege and work product by its failure to serve its privilege log when its discovery responses were due. As noted above, ACH likely realized on March 8, 2018 that Plaintiffs' counsel was not planning to re-serve the discovery requests. Construing March 8 as the date Plaintiffs' discovery requests were presumptively re-served on ACH, then ACH's discovery responses would have been due 30 days later, or on April 9, 2018. ACH provided its initial privilege log on April 30, 2018, after its counsel spoke with Plaintiffs' counsel on April 3, 2018. ACH provided a revised privilege log two week later on May 14, 2018, after Plaintiffs raised issues with the sufficiency of ACH's original privilege log."; "As recognized by courts in this District, waiver of privilege is a harsh sanction and should be reserved as a penalty where the offending party committed unjustified delay in responding. The Court finds ACH's relatively short delay in providing a privilege log was not unjustified and does not warrant the harsh sanction of waiver.")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal KS

Chapter: 55.3
Case Name: Brown v. Nationwide Affinity Ins. Co. of America, 4:17-CV-04176-LLP, 2018 U.S. Dist. LEXIS 109115 (D.S.D. June 29, 2018)
("Nationwide's failure to assert the work product doctrine in its Vaughn index would be enough, standing by itself, to defeat the application of the doctrine. Discovery objections are waived if they are not first asserted in the responses to the opposing party's discovery requests.")

Case Date Jurisdiction State Cite Checked
2018-06-29 Federal SD

Chapter: 55.3
Case Name: Scheller v. Williams Cos., Case No. CIV-17-632-M, 2018 U.S. Dist. LEXIS 96880 (W.D. Okla. June 1, 2018)
(ordering another "meet and confer" before ruling on privilege issues; "Because of the timing of the production of the privilege log in relation to the briefing of the instant motion and because the meet and confer between the parties occurred prior to the production of the privilege log, the Court finds it is unable to rule on any claims of privilege at this time. Specifically, the Court orders the parties to meet and confer regarding the documents in dispute on the privilege log. Once the parties have met and conferred, and if there are remaining documents in dispute, plaintiff shall file a motion regarding those documents. After that motion is fully briefed, the Court will determine whether defendants need to produce the disputed documents to the Court for an in camera review.")

Case Date Jurisdiction State Cite Checked
2018-06-01 Federal OK

Chapter: 55.3
Case Name: Absolute Activist Value Master Fund Ltd. v. Devine, Case No. 2:15-cv-328-FtM-29MRM, 2017 U.S. Dist. LEXIS 56624 (M.D. Fla. April 13, 2017)
(holding that the inadvertent production of protected documents did not result in a waiver; "'Pursuant to Federal Rule of Evidence 502(d), disclosure of Discovery Material subject to the attorney-client privilege or work-product doctrine or any other applicable privilege or immunity from disclosure without the express intent to waive such privilege, protection or immunity from disclosure shall not be deemed a waiver in whole or in part of the privilege, work-product or other applicable immunity, either as to the specific information disclosed or as to the same or related subject matter. If a Party promptly notifies the opposing Party or Parties in writing by hand delivery, overnight delivery, or e-mail (which e-mail must be considered delivered when sent) of the inadvertent disclosure of documents or other information which that Party believes in good faith to be subject to a claim of privilege, including but not limited to attorney-client privilege or attorney work product, Federal Rule of Evidence 502 and Federal Rule of Civil Procedure 26(b)(5)(B) must apply. Such notice must include a privilege log that complies with Federal Rule of Civil Procedure 26(b)(5)(A).'"; "The Court agrees with Defendant that first sentence of Paragraph 17 stands for the proposition that the mere fact of disclosure 'without the express intent to waive such privilege' shall not be deemed to be a waiver of any privilege."; "The first sentence of Paragraph 17, however, does not address what happens when privileged materials are inadvertently disclosed. Instead, the second sentence of Paragraph 17 addresses this issue."; "Plaintiffs argue that Rule 502(b) provides the applicable standard for review for inadvertent disclosures. . . . Defendant, however, argues that the first sentence of the Stipulation and Protective Order provides the applicable standard. . . . Upon review, the Court notes that the express terms of the Stipulation and Protective Order state that Fed. R. Evid. 502 must apply if the notice requirements are met.")

Case Date Jurisdiction State Cite Checked
2017-04-13 Federal FL

Chapter: 55.3
Case Name: NLRB v. NPC International, Inc., 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017)
("Although NPC should have known that its conclusory document descriptions were inadequate to allow the NLRB and the Court to assess its claims of attorney-client privilege and work-product protection, the Court does not find that this is an appropriate case in which to treat the protections as waived. There is no evidence that Respondent acted in bad faith. With respect to the timing of the log, as discussed above, the Court has already rejected NPC's contention that it had no duty to produce a privilege log at the administrative level. However, Respondent's belief in that respect appears grounded in its good faith reliance on its interpretation of Detroit Newspapers. Rather, the Court will require NPC to submit a supplemental privilege log that remedies the shortcomings addressed in this order.")

Case Date Jurisdiction State Cite Checked
2017-02-16 Federal TN

Chapter: 55.3
Case Name: Patrick v. City of Chicago, No. 14 C 3658, 2015 U.S. Dist. LEXIS 85719 (N.D. Ill. July 1, 2015)
("Since Rule 26(b)(5)(A) does not contain a time limit within which a privilege log must be submitted, the cases are not harmonious as to when a privilege log is impermissibly late and whether forfeiture of a claimed privilege is a consequence of a belated filing.")

Case Date Jurisdiction State Cite Checked
2015-07-01 Federal IL

Chapter: 55.3
Case Name: Thermoset Corp. v. Building Materials Corp. of America, Case No. 14-60268-Civ-Cohn/Seltzer, 2015 U.S. Dist. LEXIS 45924 (S.D. Fla. April 8, 2015)
(finding that defendant was not inappropriately tardy in filing a privilege log thirty-eight days after producing responsive documents; also finding that defendant's inadvertent production did not result in a waiver; "In Burlington [Burlington N. & Santa Fe. Ry. Co. v. United States Dist. Court for the Dist. Of Montana, 408 F.3d 1142 (9th Cir. 2005)], the Ninth Circuit rejected a per se rule that a failure to produce a privilege log within 30 days (that is, at the time a response to a document request is due), waives the privilege asserted. Instead, the Burlington Court set forth several factors to be applied 'in the context of a holistic reasonableness analysis,' using the 30-day period as a default guideline. . . . The relevant factors are: 'the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient); the timeliness of the objection and accompanying information about the withheld documents . . . ; the magnitude of the document production; and other particular circumstances of the litigation that make responding to discovery unusually easy . . . Or unusually hard.'"; "After carefully considering the parties' respective arguments and the totality of the Burlington factors, the Court does not find that the timing of GAF's production of its Supplemental Privilege Log was so unreasonable as to warrant the harsh sanction of waiver of the attorney-client privilege, which privilege has been described as 'a cornerstone of the entire judicial/legal system in this country.'")

Case Date Jurisdiction State Cite Checked
2015-04-08 Federal FL

Chapter: 55.3
Case Name: SEC v. Yorkville Advisors, LLC, 12 Civ. 7728 (GBD) (HBP), 2014 U.S. Dist. LEXIS 72090 (S.D.N.Y. May 27, 2014)
(finding that the SEC waived its work product protection by producing an inadequate log late; "For example, with respect to information relating to authors and recipients, the SEC explains that defendants' October 2013 Letter 'did not state that . . . the SEC had failed to list all of the names of the individual authors and recipients.'. . . The fact that defendants may have failed to specify the exact nature of the Privilege Logs' deficiencies is immaterial because it was the SEC's affirmative obligation, as the party asserting the privilege, to furnish the information listed in Local Civil Rule 26.2(a)(2)(A) at the time its response to the RFP was due. As attorneys admitted to practice in this Court, the SEC's attorneys are deemed to have knowledge of the Court's rules.")

Case Date Jurisdiction State Cite Checked
2014-05-27 Federal NY

Chapter: 55.3
Case Name: SEC v. Yorkville Advisors, LLC, 12 Civ. 7728 (GBD) (HBP), 2014 U.S. Dist. LEXIS 72090 (S.D.N.Y. May 27, 2014)
(finding that the SEC waived its work product protection by producing an inadequate log late; "To the extent that the SEC now offers new details pertaining to the subject matter, authors and recipients of certain documents, I find that the submission is untimely. Under the Local Civil Rules, the SEC was required to serve a proper privilege log in January 2013. Local Civil Rule 26.2(b). . . . The SEC's justification for its belated production is totally inadequate.")

Case Date Jurisdiction State Cite Checked
2014-05-27 Federal NY

Chapter: 55.3
Case Name: SEC v. Yorkville Advisors, LLC, 12 Civ. 7728 (GBD) (HBP), 2014 U.S. Dist. LEXIS 72090 (S.D.N.Y. May 27, 2014)
(finding that the SEC waived its work product protection by producing an inadequate log late; "[T]he Local Civil Rules provide that a party claiming a privilege must provide the foregoing information in writing and within the time the response to the discovery request is due, unless the court orders otherwise.")

Case Date Jurisdiction State Cite Checked
2014-05-27 Federal NY

Chapter: 55.3
Case Name: Khasin v. Hershey Co., Case No. 5:12-cv-01862-EJD-PSG, 2014 U.S. Dist. LEXIS 23886, at *7 (N.D. Cal. Feb. 21, 2014)
(finding that Hershey did not waive its privilege by producing an inadequate log, but ordering a new log; "Such a log should generally be submitted within thirty days of the production request being served.")

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 55.3
Case Name: H&L Assocs. of Kan. City, LLC v. Midwestern Indem. Co., Case No. 12-2713-EFM-DJW, 2013 U.S. Dist. LEXIS 153252, at *15, *17-18 (D. Kan. Oct. 25, 2013)
("Under Rule 26(b)(5)(A), the privilege log is due '[w]hen a party withholds information.' For a party served with a request for production, Rule 34(b)(2)(A) requires that the party 'must respond within 30 days after being served.' Thus, the privilege log would be due at the time the party's responses to requests for production are due as that would be the time when the party is deemed to have withheld responsive information. For this case, Defendant's privilege log would have been due at the time it produced the redacted documents or when it withheld or failed to produce documents responsive to the discovery requests."; "In the present case, although Defendant did not provide a privilege log at the time it produced the redacted documents, it did provide a privilege log on July 5, 2013, a little more than a month after it asserted the privilege/protection. Also, the privilege log entries for the claim activity log redactions, along with the unredacted information on the claim activity log, provide sufficient information for Plaintiff and the Court to assess the privilege/protection being claimed. Thus, Plaintiff was notified that Defendant had withheld information on the claim activity log at the time it received the redacted documents. The Court declines to find waiver based upon the untimely submission of a privilege log under these circumstances.")

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal KS B 5/14

Chapter: 55.3
Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09-2051-MD-ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *84 (S.D. Fla. Oct. 18, 2012)
("[T]he P&G Defendants have not waived their right to refrain from placing documents on the privilege log for this action which were created after the initiation of this litigation as contemplated by Rule 26.1(g)(3)(C), simply because those documents were placed on the privilege log to comply with the requirements of an action pending in another jurisdiction.")

Case Date Jurisdiction State Cite Checked
2012-10-18 Federal FL B 12/13

Chapter: 55.3
Case Name: Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *11-12, *13 (E.D. Va. July 12, 2012)
("Scan-Optics, Ltd. did not originally identify document Nos. 53, 58-66, and 73-74 as privileged documents. It filed a Second Supplemental Privilege Log identifying these as privileged on June 6, 2012. Scan-Optics, Ltd. explains that it initially did not believe these documents were relevant because it did not realize that its corporate structure would be an issue in the case. Scan-Optics, Ltd."; "The Scheduling Order in this case required the parties to serve their privilege logs at the same time as their objections to requests for production, and provided that any claim of privilege not so raised would be waived . . . . Scan-Optics, Ltd. did not raise its claim of privilege in accord with that Order, and therefore, has waived its rights to claim the documents are privileged.")

Case Date Jurisdiction State Cite Checked
2012-07-12 Federal VA

Chapter: 55.3
Case Name: Tafas v. Dudas, 530 F. Supp. 2d 786, 799 (E.D. Va. 2008)
("[T]here is no controlling Fourth Circuit authority dictating when an agency is required to prepare a privilege log.")

Case Date Jurisdiction State Cite Checked
2008-01-01 Federal VA

Chapter: 55.3
Case Name: Tafas v. Dudas, 530 F. Supp. 2d 786, 799 (E.D. Va. 2008)
("Although neither the Fourth Circuit nor the Federal Circuit have specifically addressed the question of when a privilege log is required in an APA proceeding, other district courts have considered similar questions and have reached consistent conclusions. Once a court has determined that a plaintiff has provided enough evidence for the court to conclude that the agency has omitted otherwise relevant material from the administrative record, the agency must explain its decision to do so. Although 'some agency documents, such as purely internal deliberative materials, may be protected from inclusion in the administrative record, . . . Defendants must make a specific showing establishing the application of a privilege for each document that it contends that it may withhold based on privilege.' California ex rel. Lockyer v. United States Dep't of Agric., 2006 U.S. Dist. LEXIS 15761, WL 708914, at *3-4 (N.D. Cal. Mar. 16, 2006) (citing Arizona Rehabilitation Hospital, Inc. v. Shalala, 185 F.R.D. 263, 267 (D. Ariz. 1998)).")

Case Date Jurisdiction State Cite Checked
2008-01-01 Federal VA

Chapter: 55.6
Case Name: American Modern Home Ins. Co. v. Thomas, No. 4:16 CV 215 CDP, 2017 U.S. Dist. LEXIS 146395 (E.D. Mo. Sept. 11, 2017)
(in a third party insurance case, the work product doctrine can protect some documents in the insurance company's files; "The question of whether a document was prepared in anticipation of litigation is a factual one, requiring evidence from which the Court can make a determination. Statements of counsel are not evidence.")

Case Date Jurisdiction State Cite Checked
2017-09-11 Federal MO

Chapter: 55.9
Case Name: Haynes v. Indiana Univ., No. 1:15-cv-01717-LJM-DKL, 2017 U.S. Dist. LEXIS 104991 (S.D. Ind. July 7, 2017)
(holding that plaintiff did not complain about the defendant's log, so any delay was in a sense his own fault; "Defendants respond that they timely answered Dr. Haynes' first request for production on April 11, 2016, and included objections based upon the attorney-client privilege as well as work product doctrine. Defendants also note that Dr. Haynes did not send any discovery deficiency letter or notify Defendants of any discovery deficiency until February 23, 2017, which was twelve (12) days before the discovery deadline. The letter requested that Defendants produce a log by March 3, 2017, for all documents withheld or redacted on the basis of privilege, which they timely provided."; "Defendants' delay in this matter, if any, is directly attributable to Hayne's own failure to put defendants on notice about any alleged deficiency at the time it was discovered. Dr. Haynes waited until twelve (12) days before the discovery deadline before bringing the matter to Defendants' attention, to which Defendants timely responded.")

Case Date Jurisdiction State Cite Checked
2017-07-07 Federal IN

Chapter: 55.9
Case Name: Fifth Third Bancorp v. Certain Underwriters at Lloyd's, Case No. 1:14-cv-869, 2017 U.S. Dist. LEXIS 70639 (S.D. Ohio May 9, 2017)
("The Court will require the Underwriters to identify more specifically in what way each of the 6,357 documents were improperly logged. The Underwriters should identify each document that they believe to have been excluded from Fifth Third's most recent log, or alternatively, what deficiency the Underwriters believe exists as to each document for which additional production is sought. At the same time, Fifth Third's alleged redactions 'for non-responsive content' as to which there is no claim of privilege are not proper and should immediately be produced.")

Case Date Jurisdiction State Cite Checked
2017-05-09 Federal OH
Comment:

key case


Chapter: 55.9
Case Name: General Electric v. United States, No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562 (D. Conn. Sept. 15, 2015)
("The Government further argues that certain documents claimed as privileged were predominantly for business purposes, not legal or tax advice purposes. . . . The Government maintains this objection despite GE's explicit descriptions of documents on the privilege log as 'reflecting legal advice' or 'reflecting tax advice.' The Government presented a few examples of documents that had been claimed as privileged in one production, but otherwise disclosed in another part of GE's production as unprivileged. I cannot conclude from these isolated examples that there is an endemic or systemic concern with GE's privilege designations, in view of the very large number of documents subject to production and in light of the detailed representations of GE's counsel concerning the privilege review quality-assurance process. Moreover, in view of the kinds of complex commercial transactions at issue in this case and with their substantial legal regulatory overtones, it is far from surprising that GE would validly claim privilege to a large proportion of responsive documents.")

Case Date Jurisdiction State Cite Checked
2015-09-15 Federal CT
Comment:

key case


Chapter: 55.9
Case Name: United States v. Louisiana, Civ. A. No. 11-470-JWD-RLB, 2015 U.S. Dist. LEXIS 67026 (M.D. La. May 22, 2015)
July 1, 2015 (PRIVILEGE POINT)

"Challenging an Adversary's Entire Privilege Log"

Unless an adversary's entire log clearly falls below the required specificity standard, litigants generally must object to specific log entries rather than challenge the whole log.

In United States v. Louisiana, Civ. A. No. 11-470-JWD-RLB, 2015 U.S. Dist. LEXIS 67026 (M.D. La. May 22, 2015), the federal government challenged defendant Louisiana state agency's entire 2,302-page log. The court disagreed with the federal government's position that "each entry in the privilege log is insufficient," and noted that the federal government had provided only thirteen examples of arguably "'insufficient descriptions.'" Id. At *6 (internal citation omitted). The court labeled as "an unworkable solution" its review of each individual entry — "as evidenced by the United States not undergoing this analysis." Id. At *7. Instead, the court ordered the federal government to cite forty specific entries "which are exemplary of the entries it challenges as insufficient." Id. At *10.

While courts criticize and even sanction lawyers for preparing completely insufficient privilege logs, it is refreshing to see a court reject a blanket challenge to an entire log.

Case Date Jurisdiction State Cite Checked
2015-05-22 Federal LA
Comment:

key case


Chapter: 55.9
Case Name: United States v. State of Louisiana, Civ. A. No. 11-470-JWD-RLB, 2015 U.S. Dist. LEXIS 67026 (M.D. La. May 22, 2015)
(rejecting the federal government's challenge to defendant Louisiana state agency's entire privilege log, and requiring the federal government to specify forty entries the court should review "in camera"; "First, the United States broadly challenges the entire privilege log submitted by DHH, which following revision now consists of 2,302 pages of entries. . . . While the United States suggests that each entry in the privilege log is insufficient, it only provides 13 examples of 'insufficient descriptions' that apparently account for 'hundreds if not thousands' of the privilege log's entries. . . . There are no actual citations to these other voluminous 'insufficient' entries in the Motion to Compel. Nor does the United States provide the Court with the exact number of entries it challenges, or otherwise indicate whether it considers some entries sufficient."; "Instead, the United States presents a sweeping argument and then presumably asks the Court to order DHH to revise every entry of its privilege log. However, the Court does not agree with the United States' position that the entire privilege log is deficient. Indeed, the United States is now aware of the identities and titles of the attorneys contained on the log, the type of communications at issue, the description of the subject matter of the particular emails and their attachments, and the date the email was sent (almost all coming after the filing of this lawsuit). . . . The only way for the Court to grant any of the relief requested would be to review each individual entry in the 2,302 page privilege log and then determine which entries, if any, are deficient. Presumably, the United States would then determine whether to challenge the assertion of the privilege. This is an unworkable solution (as evidenced by the United States not undergoing this analysis) and calls into question the reasonableness of the scope of the discovery requests that would require such a significant log of privileged entries."; "IT IS ORDERED that the United States may file a renewed Motion to Compel by Friday, May 29, 2015, citing up to 40 specific entries in DHH's privilege log, which are exemplary of the entries it challenges as insufficient. Both the bates numbers and record citations should be included for each of the challenged entries -- e.g., (DHHprivXXXXXX) and . . . . If the United States does renew its Motion to Compel, DHH must submit copies of any identified and challenged documents to the Court for in-camera review by Wednesday, June 3, 2015.")

Case Date Jurisdiction State Cite Checked
2015-05-22 Federal LA
Comment:

key case


Chapter: 55.9
Case Name: VC Management, LLC v. Reliastar Life Ins. Co., No. 14 CV 1385, 2015 U.S. Dist. LEXIS 51343 (N.D. Ill. April 20, 2015)
("Notably, VCM did not raise the inadequacy of the privilege log until after the close of written discovery and only after Kusick's deposition. Because Local Rule 37.2 requires that prior to filing a discovery motion, the parties are required to certify that they made good faith attempts to resolve their differences and because VCM failed to do so, its argument fails. To be clear, the court conducted an in camera review of the withheld emails to address VCM's suspicion that the withheld communications were about seeking and rendering business advice, not because the court found the privilege log lacking in specificity.")

Case Date Jurisdiction State Cite Checked
2015-04-20 Federal IL

Chapter: 55.9
Case Name: Veleron Holding, B.V. v. BNP Paribas SA, 12-CV-5966 (CM) (RLE), 2014 U.S. Dist. LEXIS 117509 (S.D.N.Y. Aug. 22, 2014)
("Veleron argues that Morgan Stanley was required to challenge the assertion of privilege by identifying each document that did not meet the elements of the privilege. This is incorrect, if a class of documents share a common characteristic, they may be challenged on the basis of that characteristic. This could include, for example, documents challenged because there is an assertion that the privilege was not applicable during a certain time period, or with respect to a certain individual, or because of any clearly defined criteria. . . . By identifying the documents both by individual attorney and generally by attorney status as foreign-qualified, in-house and outside counsel, Morgan Stanley provided sufficient information to notify Veleron which documents it was challenging. Requiring Morgan Stanley to identify each individual document would be unnecessarily time-consuming.")

Case Date Jurisdiction State Cite Checked
2014-08-22 Federal NY

Chapter: 55.9
Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2014 U.S. Dist. 52525 (D.D.C. April 16, 2014)
(analyzing privilege log issues in connection with plaintiff's attempt to recover attorney's fees after winning an insurance coverage case; "FFIC is not requesting some of the withheld documents; it is requesting all of them. Because it has offered nothing on which the Court could rely in making such a sweeping ruling, it is entitled to no relief."; "Of course, as is the case in most privilege disputes, FFIC has not seen the actual documents, so it might have been difficult to offer detailed objections to individual entries on Feld's privilege log. But FFIC has not even attempted to do so, instead offering only one paragraph of generalized argument that is purportedly applicable to every single document in dispute."; "At bottom, FFIC's filing seems to rest on yet another unstated premise: that Feld's privilege log descriptions inaccurately describe the relevant documents. But typically, even in our adversarial litigation process, as officers of the court, attorneys are presumed to be conducting themselves diligently and in good faith, and FFIC has presented no reason to distrust Feld's work on the privilege log.")

Case Date Jurisdiction State Cite Checked
2014-04-16 Federal DC

Chapter: 55.9
Case Name: Feld v. Fireman's Fund Insurance Co., Civ. A. No. 12-1789 (JDB), 2014 U.S. Dist. LEXIS 52525 (D.D.C. Apr. 16, 2014)
July 2, 2014 (PRIVILEGE POINT)

"Court Requires an Adversary to Specifically Challenge a Litigant's Privilege Log"

In most situations, litigants withholding protected documents must specifically list and describe the documents, rather than relying on blanket privilege or work product assertions. Do courts require an adversary to show the same level of specificity in challenging a litigant's privilege log?

In Feld v. Fireman's Fund Insurance Co., Civ. A. No. 12-1789 (JDB), 2014 U.S. Dist. LEXIS 52525 (D.D.C. Apr. 16, 2014), circus owner Feld sought attorneys' fees after winning an insurance coverage action against defendant insurance company. Among other things, the insurance company challenged Feld's withholding of documents on work product protection grounds. Although acknowledging that the defendant "ha[d] not seen the actual documents, so it might have been difficult to offer detailed objections to individual entries on Feld's privilege log," the court noted that defendant "has not even attempted to do so, instead offering only one paragraph of generalized argument that is purportedly applicable to every single document in dispute." Id. at *9. The court rejected the insurance company's blanket challenge to Feld's log -- concluding that Feld's lawyers "are presumed to be conducting themselves diligently and in good faith" in preparing privilege logs in their role as "officers of the court." Id. at *11. The court nevertheless "reviewed a limited sample of the disputed documents in camera" and found Feld's privilege log adequate. Id. (footnote omitted). Interestingly, the court specifically described one log entry as an "email thread" -- thus implicitly disagreeing with courts that require each email to be separately logged. Id. at *13.

Corporations that frequently log numerous protected documents should take comfort in both aspects of such common-sense opinions.

Case Date Jurisdiction State Cite Checked
2014-04-16 Federal DC
Comment:

key case


Chapter: 55.9
Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at *14-15 (D.D.C. Dec. 23, 2013)
(analyzing the waiver impact of an insured seeking recovery of attorneys fees he spent in an earlier litigation; approving the insured's privilege log; "FFIC seeks an order from this Court compelling production of several hundred documents over which Feld claims work-product protection. FFIC claims that none of these documents are protected by the work-product privilege. But to support that argument, it simply offers a small handful of allegedly problematic examples, and asks the Court to draw the inference that, because a few documents are not covered by the work-product privilege, none of them are. . . . But FFIC has not provided any basis to infer that its exemplars are representative of the whole. Instead, it appears that FFIC simply proffered documents on the privilege log that come closest to the protected-unprotected line, in an attempt to convince the Court that the entire log was improper.")

Case Date Jurisdiction State Cite Checked
2013-12-23 Federal DC B 5/14

Chapter: 55.9
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK) (JCF), 2013 U.S. Dist. LEXIS 113050, at *14-16 (S.D.N.Y. Aug. 9, 2013)
("Chevron charges that certain withheld documents are not legal communications, but rather public relations advice. . . . However, Chevron has not identified those documents that it believes constitute unprotected public relations advice. If it seeks production of such documents, it must identify them by document number so that they can be produced by the defendant or submitted for in camera review.")

Case Date Jurisdiction State Cite Checked
2013-08-09 Federal NY B 4/14

Chapter: 55.11
Case Name: Heartland Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 U.S. Dist. LEXIS 124654 (S.D. Ind. July 25, 2018)
("Defendants have made clear in their motion that the three emails are privileged, but they were improperly logged due to administrative oversights. The Court does not find waiver of privilege to be appropriate when it is based on a technical error, and the party has since shown the document to be privileged.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal IN

Chapter: 55.11
Case Name: BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Co., 14-CV-09367 (JMF) (SN), 2018 U.S. Dist. LEXIS 124631 (S.D.N.Y. July 23, 2018)
(analyzing common interest, work product and privilege log issues against defendant Deutsche Bank; focusing among other things on communications between Deutsche Bank as indenture trustee and as loan servicer; "The Court finds that Deutsche Bank has failed to provide an adequate privilege log notwithstanding multiple opportunities to do so. While some log entries are better than others -- for example, where descriptions make clear that documents are draft discovery responses or attorney bills -- Deutsche Bank's obligation is to provide sufficient information so that BlackRock is able to assess the privilege fully. Moreover, as explained in the Court's review of the exemplars, these deficient log entries often result in overly broad privilege assertions. Indeed, Deutsche Bank itself withdrew its privilege claims as to seven of the 20 documents that BlackRock selected as exemplars, and the Court found that an additional ten were improperly withheld."; "A privilege log is not a mere administrative exercise. Its purpose is to ensure that a withholding party can justify a privilege designation. By submitting a deficient log, Deutsche Bank attempted to bypass this requirement, resulting in vastly overinclusive privilege designations. In an attempt to avoid this very problem, the Court ordered Deutsche Bank to provide a sworn affidavit by a party representative explaining why 30 of the Common Interest Exemplars were protected under the common interest doctrine. Instead, Deutsche Bank offered the sworn statement of a Morgan, Lewis & Bockius partner. The Court requested a party representative to force the party to defend its designations in connection with these loan-level litigations. Counsel's views were not requested."; "The failure to provide a party affidavit is demonstrative of Deutsche Bank's broader failings with respect to its privilege log. The Court has given Deutsche Bank multiple opportunities to correct these deficiencies and it has failed to do so. Instead, Deutsche Bank waits until a document is challenged to review whether its privilege designation is correct. And as discussed earlier, when challenged, Deutsche Bank frequently realizes that the privilege was improperly asserted. This stance inappropriately shifts the burden to BlackRock to challenge a privilege assertion when Deutsche Bank should have established why a document was protected in the first place. A privilege log is not an iterative process and the Court will not offer Deutsche Bank another opportunity to follow the rules established in this Circuit."; "Accordingly, Deutsche Bank has waived its privilege with respect to all documents listed on its privilege log (except as otherwise ruled in this Order) unless it can make a particularized showing as to individual documents that it believes are (1) adequately described on its log and, (2) in fact, privileged. Only documents listed on the privilege log with complete information -- that is, the name of the author of the document, the name of any attorney, a clear description of the document, etc. -- could qualify for this safety valve. Absent an application to the Court within 30 days on a document-by-document basis, all documents on the privilege log must be produced. The parties are ordered to file their letters on the docket.")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal NY

Chapter: 55.11
Case Name: Motorola Solutions, Inc. v. Hytera Communications Corp., No. 17 C 1973, 2018 U.S. Dist. LEXIS 64095 (N.D. Ill. April 17, 2018)
(noting that the plaintiff's privilege claims shrunk when challenged; "As so often occurs, claims of privilege have played an important role in this case, with Motorola raising the privilege to the turnover of over 700 documents, which were supported by a plainly inadequate privilege log, which Motorola was forced to redo to comply with basic requirements under the Federal Rules of Civil Procedure. . . . Motorola then slashed its privilege claims to cover just over 100 documents, proving once again that unfortunately excessive claims of privilege are commonplace in modern litigation, and that they are often indiscriminately and improperly used 'on documents that do not truly qualify for protection. . . . The claims of privilege often dissipate when a party is required to properly support them. That is what happened here. For Hytera, the 100 or so purportedly privileged documents that remained are still too many.")

Case Date Jurisdiction State Cite Checked
2018-04-17 Federal IL
Comment:

key case


Chapter: 55.11
Case Name: West Bend Mutual Ins. Co. v. Zurich American Ins. Company, No. 17 C 2598, 2018 U.S. Dist. LEXIS 61016 (N.D. Ill. April 11, 2018)
(noting that defendant had initially claimed privilege for many documents, but ultimately dropped many of its privilege claims; "Zurich, as is usually the case, made sweeping claims of attorney-client privilege and work product, and produced only heavily redacted documents. The claims were exaggerated, proving once again that excessive claims of privilege are all too commonplace in modern litigation and that they are indiscriminately and improperly used 'on documents that do not truly qualify for protection.'"; "After an initial hearing on this dispute, Zurich had more than a moment of self-realization and 'reconsidered many of the redactions made in its Privilege Log.' It then produced many previously withheld or redacted documents. And so, of the original 200 or so documents at issue . . . only about 80 remain.")

Case Date Jurisdiction State Cite Checked
2018-04-11 Federal IL
Comment:

key case


Chapter: 55.11
Case Name: Sidibe v. Health, Case No. 12-cv-04854-LB, 2018 U.S. Dist. LEXIS 20350 (N.D. Cal. Feb. 7, 2018)
("The court finds that Sutter has not met its burden of establishing that this document is privileged. The court notes as an initial matter that Sutter's original privilege log stated that this document 'reflect[ed] legal advice' from an in-house attorney, but Sutter's revised submission to the court now states that this document was forwarded to the in-house attorney for her legal advice on the contents of the document. Either way, this document relates to business strategies and is not a communication seeking legal advice, and as discussed above, neither vaguely stating that a business document somehow 'reflects' legal advice nor forwarding a preexisting business document to an attorney for her review renders the document a privileged communication.")

Case Date Jurisdiction State Cite Checked
2018-02-07 Federal CA
Comment:

key case


Chapter: 55.11
Case Name: Winfield v. City of New York, 15-CV-05236 (LTS) (KHP), 2017 U.S. Dist. LEXIS 194413 (S.D.N.Y. Nov. 27, 2017)
("In connection with the City's submission concerning its privilege assertions over the sample set of 80 documents, the City withdrew its privilege designation as to 36 documents and produced them. It also withdrew its privilege designation as to another 15 documents but it did not produce them because it asserted they were non-responsive. Out of the 80 document sample, the City maintained its original privilege assertion(s) over only 20 documents. This Court subsequently ordered the City to submit all 80 documents to this Court for in camera review and a more detailed log for purposes of assessing the validity of the remaining privilege designations. The City submitted the documents and detailed privilege log.")

Case Date Jurisdiction State Cite Checked
2017-11-27 Federal NY

Chapter: 55.11
Case Name: Carr v. Federal Bureau of Prisons, No. 2:14-cv-00001-WTL-MJD, 2017 U.S. Dist. LEXIS 106489 (S.D. Ind. July 10, 2017)
(holding that employee-to-employee communication can be privileged under the circumstance; "'In this area in particular Plaintiffs recognize that many of the descriptions in the new log implicate legal advice whereas such was not necessarily the case in the old log filed with the Motion. . . . Having specifically reviewed the privilege log entries that added an attorney or legal advice to the description, the Court can confirm that this is the case.'"; "'All counsel are reminded that the more exacting level of diligence evinced by the new log is actually the proper level of diligence that should have been applied in preparing the original log. Privilege protection is not generally an area where a lot of 'do overs' are allowed.'")

Case Date Jurisdiction State Cite Checked
2017-07-10 Federal IN
Comment:

key case


Chapter: 55.11
Case Name: La. Municipal Police Employees Retirement Sys. v. Green Mountain Coffee Roasters, Inc., Case No. 2:11-cv-289, 2017 U.S. Dist. LEXIS 165151 (D. Vt. April 7, 2017)
("[C]ourts must at times recognize 'the unique role that an in-house attorney brings to bear in imparting [legal] advice that may incidentally also involve business advice.'. . . That role necessarily includes drafting language for public statements with respect to regulated transactions . . . and advising on potential litigation."; "Plaintiffs submit that Defendants' assertions of privilege are unreliable. For support, they observe that some of the documents Defendants at first withheld, then later produced as non-privileged, bear the same description as documents that remain undisclosed. While Defendants stand by their privilege determinations, they have also invited the Court to undertake an in camera review of any challenged documents."; "The parties have been disputing attorney-client privilege for months, and Defendants have amended their disclosures as many as nine times. With a document production of over one million documents, such revisiting and revision is perhaps understandable. It is also evidence of Defendants' good faith, as they have repeatedly acknowledged errors and made amends. At this point, Defendants assert that their disclosures are complete, and the Court is reticent to undertake yet another review of the documents in question. . . . Plaintiffs' motion to compel additional documents, based upon the suspicion that they contain business rather than legal advice, is denied.")

Case Date Jurisdiction State Cite Checked
2017-04-07 Federal VT
Comment:

key case


Chapter: 55.11
Case Name: Dyson, Inc. v. SharkNinja Operating LLC, No. 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. Apr. 5, 2017)
June 7, 2017 (PRIVILEGE POINT)

"Court Offers Rare Good News and a Helpful Hint about Effective Privilege Logs"

Plaintiffs suing document-laden corporate defendants often try to make privilege log mistakes into a destructive side show.

In Dyson, Inc. v. SharkNinja Operating LLC, No. 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. Apr. 5, 2017), the court acknowledged that defendant had made privilege log mistakes and withheld some unprotected documents. But the court refused plaintiff's request for a Special Master's appointment – noting that defendant's over-designation was not "a systemic problem," and that "it appears to the Court that this is simply the type of human error that will necessarily occur when a large document review and production is undertaken." Id. at *15. The court's review of some withheld documents also provided a helpful hint about how lawyers and their corporate clients can maximize their chance of winning privilege fights. The court held that an email seeking "'initial reactions'" to what was likely an advertisement was not privileged, although a lawyer received a copy. Id. at *7 (internal citation omitted). The court noted that the email "does not request legal advice from [the lawyer] or discuss any legal issues." Id.

Some courts' refreshingly realistic approach to privilege log errors should encourage corporate defendants. But those defendants should train their employees seeking legal advice to explicitly request it in communications – because even tolerant courts often protect only those documents which demonstrate their primarily legal purpose on their face.

Case Date Jurisdiction State Cite Checked
2017-04-05 Federal IL
Comment:

key case


Chapter: 55.11
Case Name: Ferring B.V. v. FERA Pharmaceuticals, LLC, CV 13-4640 (SJF) (AKT), 2016 U.S. Dist. LEXIS 132520 (E.D.N.Y. Sept. 27, 2016)
("After reviewing both the original and revised privilege logs, as well as counsel's cover letter, the Court is at a loss to understand two things. First, Defendants' counsel has not adequately explained why the privilege log he provided to the Court on September 17, 2015 was different from the log provided to Plaintiff on September 22, 2015, such that the log provided to the Court needed to be 'revised to conform with the general Perrigo Privilege Log provided to plaintiff.' Second, the Court does not understand why counsel changed the privilege designations in the 'Revised Joint Defense Privilege Log' to eliminate the assertion of the attorney work-product privilege (with the exception of one entry in the revised log). While the Court appreciates Perrigo's desire to revise the log to 'more accurately reflect the attorney authors' of the communications listed in the log, the Court does not agree that the revised privilege log 'more accurately reflects . . . the privilege being claimed.'")

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal NY

Chapter: 55.11
Case Name: Portland Pipe Line Corporation v. City of South Portland, No. 2:15-cv-54-JAW, 2016 U.S. Dist. LEXIS 124950 (D. Me. Sept. 8, 2016)
("I appreciate that the defendants cannot be certain, in the absence of the requested in camera review, whether documents have or have not been properly withheld. However, I take into consideration the plaintiffs' counsel's representation, as officers of the court, that the plaintiffs undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor and then, following the production of more than 100,000 pages of ESI to the defendants on July 29, immediately undertaking a painstaking manual review to verify the privileged status of every ESI document marked as privileged and draft appropriate descriptions for the ESI log. The plaintiffs' counsel further represent that the plaintiffs executed targeted searches of documents as to which privilege had been claimed to identify those less likely to have been privileged. As a result of those efforts, when the plaintiffs produced their ESI log on August 2, they not only made new claims of privilege as to previously produced documents but also withdrew claims of privilege as to a number of other documents.")

Case Date Jurisdiction State Cite Checked
2016-09-08 Federal ME

Chapter: 55.11
Case Name: Portland Pipe Line Corporation v. City of South Portland, No. 2:15-cv-54-JAW, 2016 U.S. Dist. LEXIS 124950 (D. Me. Sept. 8, 2016)
("I appreciate that the defendants cannot be certain, in the absence of the requested in camera review, whether documents have or have not been properly withheld. However, I take into consideration the plaintiffs' counsel's representation, as officers of the court, that the plaintiffs undertook a costly and labor-intensive two-step process with respect to claiming privilege as to ESI, first relying on a technologically-assisted privilege review by a hired ESI discovery vendor and then, following the production of more than 100,000 pages of ESI to the defendants on July 29, immediately undertaking a painstaking manual review to verify the privileged status of every ESI document marked as privileged and draft appropriate descriptions for the ESI log. The plaintiffs' counsel further represent that the plaintiffs executed targeted searches of documents as to which privilege had been claimed to identify those less likely to have been privileged. As a result of those efforts, when the plaintiffs produced their ESI log on August 2, they not only made new claims of privilege as to previously produced documents but also withdrew claims of privilege as to a number of other documents.")

Case Date Jurisdiction State Cite Checked
2016-09-08 Federal ME

Chapter: 55.11
Case Name: FTC v. Abbvie, Inc., Civ. A. No. 14-5151, 2016 U.S. Dist. LEXIS 113731 (E.D. Pa. Aug. 25, 2016)
("'In responding to that motion, AbbVie supplied the court with revised privilege logs purporting to add additional information and privilege claims. We reject AbbVie's belated attempt at amending the privilege logs. However, to the extent that AbbVie has withdrawn claims of privilege in its amended logs, we will of course treat those claims as withdrawn.'")

Case Date Jurisdiction State Cite Checked
2016-08-25 Federal PA

Chapter: 55.11
Case Name: FTC v. Abbvie, Inc., Civ. A. No. 14-5151, 2016 U.S. Dist. LEXIS 113731 (E.D. Pa. Aug. 25, 2016)
("'We note that most of the privilege log entries for these presentations averred that the documents were '[d]raft presentation[s] prepared at the request of AbbVie in-house counsel Pearson Bownas.' AbbVie's opposition brief and Bownas's declaration clearly have backed away from this assertion.'")

Case Date Jurisdiction State Cite Checked
2016-08-25 Federal PA

Chapter: 55.11
Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, 2016 U.S. Dist. LEXIS 44267, at *70 (S.D. W. Va. Mar. 28, 2016)
("In the August 28, 2015 opinion and order, the undersigned concluded that Ford's ASO privilege log, as it existed at that time, did not comply with Rule 26(b)(5)(A) because it failed to provide any concrete facts about the nature or subject matter of the withheld documents, which would allow an individual reviewing the log to assess the appropriateness of the privilege claim. Having now reviewed Ford's September 8, 2015 supplementation of the ASO privilege log, the Court finds that the log satisfies Rule 26(b)(5)(A) and the previous opinion and order. The supplemental document descriptions, along with the other information contained in the log, adequately permit Plaintiffs 'to make an intelligent determination about the validity of the assertion of the privilege.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2016-03-28 Federal WV B 8/16

Chapter: 55.11
Case Name: Tate & Lyle Americas, LLC v. Gatt Air Techniques, Inc., Case No. 13-2037, 2015 U.S. Dist. LEXIS 104265 (C.D. Ill. July 31, 2015)
("As noted above, Plaintiff's Supplement argues that since its Motion (#60) was filed, Defendant has produced numerous additional documents previously withheld as privileged, and that the voluntary release of these unrelated documents suggests that Defendant has improperly labeled the numerous documents as privileged. Plaintiff asks the Court to perform a large scale in camera review of documents identified in Defendant's privilege log and require Defendant to pair each of the documents that have been disclosed with the description of each document from log or logs describing them."; "The Court declines Plaintiff's request to perform a large scale in camera review of the remaining documents."; "Further, Defendant's Response to the Supplement details the process Defendant took to pair the documents with the descriptions included in the initial and amended privilege logs. Therefore, there is no need for Defendants to repeat this action."; "Before seeking court action, Rule 37 of the Federal Rules of Procedure directs a party to show that it 'has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.' Fed. R. Civ. P. 37(a)(1). The Court has confidence that the parties can resolve any remaining discovery disputes concerning documents included in the second and third privilege logs without court intervention.")

Case Date Jurisdiction State Cite Checked
2015-07-31 Federal IL

Chapter: 55.11
Case Name: Beverly v. Watson, No. 14 C 4970, 2015 U.S. Dist. LEXIS 114146 (N.D. Ill. Aug. 28, 2015)
("Plaintiffs do not raise any substantive challenges to Defendants' assertion of the attorney-client privilege. Instead, they object to the fact that Defendants initially asserted only work-product protection over several of these documents, then later raised the attorney-client privilege in response to letters Plaintiffs sent challenging the work-product designation. . . . Plaintiffs find the modifications suspicious and believe that 'defendants' shifting privilege claims were contrived to impermissibly continue withholding documents that should have been produced.". . . Of course, Plaintiffs themselves invited the modifications by asking Defendants to take another look at their privilege designations, and Federal Rule of Civil Procedure 26(e) imposes an affirmative duty to timely supplement or correct any disclosures where a 'party learns that in some material respect the disclosure or response is incomplete or incorrect.'")

Case Date Jurisdiction State Cite Checked
2015-04-28 Federal IL
Comment:

key case


Chapter: 55.11
Case Name: Schaeffer v. Gregory Village Partners, L.P., Case No. 13-cv-04358-JST, 2015 U.S. Dist. LEXIS 8797 (N.D. Cal. Jan. 25, 2015)
(explaining that the defendant had changed its log three times; "By February 9, 2015, Gregory Village is also ordered to file a declaration under penalty of perjury, by an attorney of record, that he or she has personally reviewed every entry on the Gregory Village privilege log and affirmatively determined that (a) Gregory Village continues to assert the attorney-client or work product privilege as to each document on the log; and (b) each document description on the log accurately reflects the subject matter of the underlying communication.")

Case Date Jurisdiction State Cite Checked
2015-01-25 Federal CA

Chapter: 55.11
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "Another red flag was the massive scope of the log relative to the number of non-privileged documents that Mechel had produced. The initial privilege log was 672 pages long and contained 6,125 entries. As of September 12, 2014, Mechel had produced 11,201 documents, meaning that it had designated over one-third of the responsive documents as privileged. The underlying transaction was a business deal. Yet Mechel was claiming that one-third of the documents and communications relating to the transaction were legal in nature. One wonders how Mechel could ever get anything done if its personnel spend one-third of their time obtaining legal advice. Compounding the problem of the initial privilege log's sheer size was its incomprehensible structure. The 6,125 entries were not organized in chronological order. They did not appear to have been arranged in any particular order at all.")

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 55.11
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "Unwittingly, Mechel may have revealed the reasons for the size of its log and the glaring omissions of basic information from nearly 600 entries. Entry number 227 contained an editorial note that stated: '[T]he signature was cut-off from the email and so the author is unknown. To be safe, I assumed this was from an attorney.". . . Mechel obviously did not intend to produce this telling comment, which confirms what one can infer about how Mechel approached its log. Mechel inverted the law of privilege. Rather than believing that Mechel needed to justify its privilege assertions, Mechel assumed that any document an attorney might have touched would be privileged.")

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 55.11
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "As a first cut when asserting privilege, a party might well set aside any document where an attorney appears as an author or recipient, or which come from an attorney's file. But that is only the starting point for privilege analysis. Once those documents have been collected, lawyers must make judgments. In the first instance, more junior lawyers typically make initial calls about which documents might be subject to a claim of privilege. Counsel disclosed that Mechel outsourced that task to contract attorneys provided by PriceWaterhouseCoopers LLC and Huron Consulting Group.")

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 55.11
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "Understandably, lawyers are concerned about making a mistake and producing a privileged document, which often leads to overdesignation. Because of this risk, and because disputes about privilege are common, the senior lawyers in the case, especially the senior Delaware lawyers, must provide guidance about how the privilege assertion process should unfold. As important, senior lawyers, including senior Delaware lawyers, must ensure that the guidance provided was followed. Preparing a privilege log with integrity requires the involvement and oversight of senior lawyers who know the applicable standards, understand the roles of the individuals involved in the communications, and can make textured judgment calls on a principled basis."; "The involvement of senior practitioners appears to have been entirely lacking in this case. Mechel's lead counsel was candid about his lack of involvement. He was away when the log was produced and did not look at it until after the disputes arose. There is no indication that Delaware counsel had any involvement in the preparation of the log. Mechel seems to have forwarded to Justice as its initial log whatever PriceWaterhouseCoopers and Huron gave Mechel.")

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 55.11
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "Since providing its initial log, Mechel has re-designated certain documents as non-responsive. Those documents will be produced. By listing the documents initially on the log, Mechel's counsel represented that they were responsive. The re-designation of the documents as non-responsive is too convenient.")

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 55.11
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "When providing its second, third, and fourth amended logs, Mechel seemed to believe that its only obligation was to address the specific items that Justice raised. In essence, Mechel's counsel tried to outsource their obligation to produce an adequate log to Justice's counsel. The specific deficiencies that Justice identified illustrated broader and systemic problems which Mechel's counsel should have addressed. Justice had no way of knowing how widespread the problems were; Justice could only cite the examples it found. Given that Mechel initially produced a facially inadequate log and subsequently provided deficient amended logs, it was reasonable for Justice to believe that the problems were endemic. That is the inference the court draws.")

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 55.11
Case Name: Lindon v. Kakavand, Civ. A. No. 5:13-026-DCR, 2014 U.S. Dist. LEXIS 113304) (E.D. Ky. Aug. 15, 2014) f
("The plaintiff now contends that UKMC has waived any privilege claim because the initial privilege log did not provide for a comprehensive list of recipients. This is incorrect."; ". . . Any perceived deficiency has been remedied by UKMC's supplementation of its privilege log."; "Here, although the Magistrate Judge found UKMC's privilege log to be deficient, UKMC was directed to supplement. It timely complied with the Court's order, providing all necessary information. . . . The sanction of waiver is not appropriate, especially since UKMC has complied with the court's supplementation directive.")

Case Date Jurisdiction State Cite Checked
2014-08-15 Federal KY

Chapter: 55.11
Case Name: Galena St. Fund, L.P. v. Wells Fargo Bank, N.A., Civ. A. No. 12-cv-00587-BNB-KMT, 2014 U.S. Dist. LEXIS 31257, at *23-24 (D. Colo. Mar. 10, 2014)
(analyzing a claim by plaintiff, an investor in mortgage backed trusts; "I am not persuaded that Wells Fargo's admitted over-designation of material as privileged was an intentional attempt to evade discovery. Although there is evidence that Wells Fargo claimed privilege on documents which clearly are not, Wells Fargo also over-disclosed and now seeks to claw back entirely or make additional redactions to more than 900 pages of its production. . . . Moreover, as a result of a remedial review, . . . Wells Fargo produced an additional 1,000 documents previously withheld in error. . . . The conduct alleged here does not warrant the severe sanction of imposing a blanket waiver of the privilege, as Galena urges.")

Case Date Jurisdiction State Cite Checked
2014-03-10 Federal CO B 8/14

Chapter: 55.11
Case Name: In re 650 Fifth Avenue & Related Properties, No. 08 Civ. 10934 (KBF), 2013 U.S. Dist. LEXIS 64150, at *10 (S.D.N.Y. Apr. 24, 2013)
July 3, 2013 (PRIVILEGE POINT)

"Courts Issue Practical Rulings on Privilege Logs"

Some courts have adopted unrealistically strict rules about privilege logs, such as a requirement to list every person who learned a withheld document's content. Fortunately, other courts take a more common-sense view of privilege logs.

In SGD Engineering Ltd. V. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186 (D. Ariz. Apr. 17, 2013), the court rejected plaintiff's argument that defendant had waived its privilege by submitting five versions of a privilege log and dropping privilege claims for several hundred documents. The court acknowledged that "[i]n large-volume document cases like this, it is not unusual for the privilege proponent to revise the details of its privilege log." Id. At *18. A week later, the Southern District of New York analyzed the government's argument that defendants' privilege log was inadequate. In In re 650 Fifth Avenue & Related Properties, the court noted that "[w]hat is good for the goose is good for the gander," and held that "[i]f the Government persists in its request that defendants revise their log to more adequately support the basis for their assertions of privilege, the Court will require that they produce a log with a similar level of detail." No. 08 Civ. 10934 (KBF), 2013 U.S. Dist. LEXIS 64150, at *10 (S.D.N.Y. Apr. 24, 2013).

It is refreshing to see some courts' realistic approach to privilege log issues.

Case Date Jurisdiction State Cite Checked
2013-04-24 Federal NY
Comment:

key case


Chapter: 55.11
Case Name: AM Gen. Holdings LLC v. Renco Grp., Inc., C.A. Nos. 7639- & 7668-VCN, 2013 Del. Ch. LEXIS 102, at *13-14 (Del. Ch. Apr. 18, 2013)
("Renco challenges AMG's re-designation of some twenty-four documents from privileged to non-responsive. If the documents really are non-responsive to Renco's discovery request, there was no reason to have asserted a privilege in order to withhold them. That, of course, may be true, but discovery depends upon the proper conduct of the party responding to discovery. Renco has offered no basis to suspect that AMG is not acting with integrity in this regard, and the Court accepts AMG's classification of documents here, just as it has accepted AMG's initial characterizations of some unknown number of other reviewed, but not identified documents." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-04-18 State DE B 3/14

Chapter: 55.11
Case Name: SGD Eng'g Ltd. v. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186, at *18, *19, *20-21 (D. Ariz. Apr. 17, 2013)
(refusing to find that defendant Lockheed Martin had waived its privilege protection by repeatedly amending its privilege log; "SGD argues that Boeing has waived its attorney-client privilege and work-product claims. SGD points out that nine months have been spent debating privilege issues; that Lockheed has filed five versions of its privilege log; and that Lockheed has dropped its privilege claims on 266 documents that have been produced."; "In large-volume document cases like this, it is not unusual for the privilege proponent to revise the details of its privilege log. Rule 26(b)(5) is deliberately imprecise on how much detail is required for privilege descriptions."; "Parties are expected to confer on privilege and other discovery disputes and attempt to resolve their differences. That was done in this case. SGD articulated its objections. Lockheed in turn evaluated its privilege claims, sometimes dropped privilege claims, sometimes produced documents, and other times provided more detail in a revised privilege log. This is what is expected in privilege disputes."; "In sum, I find that Lockheed proceeded in good faith. I also find that SGD was to some extent overbroad in asserting its privilege objections as evidenced by the fact that SGD has dropped some of its objections and has only recently added new details to explain the basis for its objections.")

Case Date Jurisdiction State Cite Checked
2013-04-17 Federal AZ B 7/13

Chapter: 55.11
Case Name: SGD Engineering Ltd. V. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186 (D. Ariz. Apr. 17, 2013)
July 3, 2013 (PRIVILEGE POINT)

"Courts Issue Practical Rulings on Privilege Logs"

Some courts have adopted unrealistically strict rules about privilege logs, such as a requirement to list every person who learned a withheld document's content. Fortunately, other courts take a more common-sense view of privilege logs.

In SGD Engineering Ltd. V. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186 (D. Ariz. Apr. 17, 2013), the court rejected plaintiff's argument that defendant had waived its privilege by submitting five versions of a privilege log and dropping privilege claims for several hundred documents. The court acknowledged that "[i]n large-volume document cases like this, it is not unusual for the privilege proponent to revise the details of its privilege log." Id. At *18. A week later, the Southern District of New York analyzed the government's argument that defendants' privilege log was inadequate. In In re 650 Fifth Avenue & Related Properties, the court noted that "[w]hat is good for the goose is good for the gander," and held that "[i]f the Government persists in its request that defendants revise their log to more adequately support the basis for their assertions of privilege, the Court will require that they produce a log with a similar level of detail." No. 08 Civ. 10934 (KBF), 2013 U.S. Dist. LEXIS 64150, at *10 (S.D.N.Y. Apr. 24, 2013).

It is refreshing to see some courts' realistic approach to privilege log issues.

Case Date Jurisdiction State Cite Checked
2013-04-17 Federal AZ
Comment:

key case


Chapter: 55.11
Case Name: Bryan Corp. v. Chemwerth, Inc., 296 F.R.D. 31, 36 & n.4 (D. Mass. 2013)
(quoting successful affidavits supporting plaintiff's lawyer's contention that it needed the assistance of plaintiff's long-time FDA consultant in providing legal advice to plaintiff; "Significantly, during those communications, Bryan informed ChemWerth that it had discovered mistakes in its privilege log, and would revise its log and produce any documents that were not protected from disclosure."; "Bryan has since revised its privilege log in order to correct prior errors and address issues raised by ChemWerth in its motion."; "'ChemWerth complains that as part of its revisions, Bryan designated all of the withheld documents as work product, including documents that had previously been withheld solely on the basis of the attorney-client privilege. . . . To the extent Chemwerth suggests that Bryan's actions were improper, this court disagrees. As described above, ChemWerth was on notice, before it filed its motion to compel, that there were mistakes in the original designations, and that Bryan and Waldman intended to revisit their privilege logs in light of ChemWerth's assertions that documents had been improperly withheld. . . . Accordingly, there was nothing inappropriate about Bryan's decision to review the privilege logs and to revise them in order to accurately reflect the bases for Bryan's and Waldman's claims of privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal MA B 5/14

Chapter: 55.11
Case Name: Fed. Energy Regulatory Comm. v. J.P. Morgan Ventures Energy Corp., Misc. No. 12-352 DAR, 2012 U.S. Dist. LEXIS 174815, at *8-9 (D.D.C. Nov. 29, 2012)
("Petitioner, in support of its contention that Respondent's invocation of attorney-client privilege is overbroad, principally maintains that because Respondent claimed the privilege with respect to some documents which it later produced, the court should view the claim of privilege as to the redacted portions still being withheld with suspicion. . . . Petitioner relies upon In re Application of Veiga, 746 F. Supp. 2d 27 (D.D.C. 2010), in support of this proposition. . . . However, the undersigned finds that Veiga cannot be broadly read for the proposition that the voluntary production of documents warrants the conclusion that the proffered explanation for the continued withholding of other documents should be viewed with suspicion. Rather, the court in Veiga found, with respect to withheld documents reviewed in camera, that the proffered explanation for the withholding could not be credited. Moreover, unlike the circumstances considered by the court in Veiga. the redactions are consistent with the proffered explanation. . . . Indeed, application of this proposition would effectively penalize counsel for voluntarily revisiting the basis for withholding documents sought pursuant to administrative subpoena.")

Case Date Jurisdiction State Cite Checked
2012-11-29 Federal DC B 2/13

Chapter: 55.11
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013, at *160, 160-61, 161 (S.D. Ohio Nov. 13, 2012)
("[P]laintiffs assert that the log still lacks basic information for certain entries, such as the author, recipient, and creation date for documents and fails to provide requisite information, e.g., that a document was created in anticipation of litigation. Plaintiffs request that the Court order defendants to provide a log which adheres to the requirements enunciated in the August 2011 Order."; "In response, defendants contend that the log comports with the requirements of Fed. R. Civ. P. 26, which permits the omission of certain details when the volume of the documents withheld would make inclusion unduly burdensome. Defendants assert that they spent significant time revising the log in order to comply with the August 2011 Order and, with the exception of a small minority of entries, have included all requisite details. In those instances where certain information is not facially apparent, such as the author of a document, defendants have provided the names of a custodian and other descriptive details which they claim provide plaintiffs sufficient information to analyze the privilege claims."; "After spending a substantial amount of time reviewing and referring to defendants' privilege log while undertaking the instant in camera review, the undersigned finds that the current version of the log is sufficient and declines to require defendants to produce yet another privilege log.")

Case Date Jurisdiction State Cite Checked
2012-11-13 Federal OH B 7/13

Chapter: 55.11
Case Name: Wilkinson v. Greater Dayton Reg'l Transit Auth., Case No. 3:11cv00247, 2012 U.S. Dist. LEXIS 150579, at *7-8 (S.D. Ohio Oct. 19, 2012)
("Plaintiffs' insistence on obtaining documents based on the asserted insufficiencies in Defendants' first revised privilege log asks the Court to overlook or ignore the further revisions Defendants have made in the second revised privilege log. . . . Defendants' second revised privilege log effectively supercedes their first revised privilege log and moots the parties' dispute over the first revised privilege log.")

Case Date Jurisdiction State Cite Checked
2012-10-19 Federal OH B 12/13

Chapter: 55.11
Case Name: Wilkinson v. Greater Dayton Reg'l Transit Auth., Case No. 3:11cv00247, 2012 U.S. Dist. LEXIS 150579, at *5-6 (S.D. Ohio Oct. 19, 2012)
("Plaintiffs contend that Defendants must produce the documents they withheld under the first privilege log, even though Defendants have since revised their privilege log for a second time. Plaintiffs' contention is problematic for several reasons. First, Plaintiffs' counsel did not make a reasonable effort to exhaust all extrajudicial means of resolving the present discovery dispute -- the one focused on the July 12, 2012 privilege log -- before filing their Motion to Compel. Rule 37.1 of the Southern District of Ohio Civil Rules not only mandates counsel to take such measures, it contemplates an interactive process between counsel to resolve discovery disputes without judicial intervention.")

Case Date Jurisdiction State Cite Checked
2012-10-19 Federal OH B 12/13

Chapter: 55.11
Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09-2051-MD-ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *48 (S.D. Fla. Oct. 18, 2012)
("The undersigned has reviewed the descriptions in the privilege log of the sample documents submitted for an in camera review and concludes that the descriptions currently in that log, which were supplemented after a meet and confer held in October of 2011, and again after a meet and confer held in March of 2012, are sufficient.")

Case Date Jurisdiction State Cite Checked
2012-10-18 Federal FL B 12/13

Chapter: 55.11
Case Name: In re Denture Cream Prods. Liab. Litig., Case No. 09-2051-MD-ALTONAGA/SIMONTON, 2012 U.S. Dist. LEXIS 151014, at *51-52 (S.D. Fla. Oct. 18, 2012)
("The goal of collecting sample documents was to determine whether privileges had been properly or improperly claimed and for the Parties to apply those rulings to the remaining documents, without the need for further court review. Where P&G agreed to withdraw its assertion of privilege during the meet and confer process regarding the sample documents, there was no need for a court ruling. Nonetheless, even though there was no court ruling regarding the applicability of the privilege, the undersigned assumes that, consistent with the purpose of the sample review process, P&G has withdrawn any similar claims of privilege with respect to the 3800 documents originally challenged, and has produced any similar documents.")

Case Date Jurisdiction State Cite Checked
2012-10-18 Federal FL B 12/13

Chapter: 55.12
Case Name: Progressive Southeastern Insurance Co. v. Arbormax Tree Service, LLC, 5:16-CV-662-BR, 2018 U.S. Dist. LEXIS 159222 (E.D.N.C. Sept. 17, 2018)
(analyzing log requirements in a third party insurance context; "As noted, plaintiff has not produced a privilege log for the documents in the coverage file on the ATS policy it is withholding. It argues that it was not required to produce a privilege log because 'to do so would waive the work product and attorney-client privilege' and that '[a] privilege log would require [plaintiff] to identify dates and communications between [claim manager Rice] and other claim representatives, and such information is protected by work product and attorney-client privileges.' Pl.'s Resp. to Mot. to Compel 3-4."; "As previously discussed, a party withholding information on the grounds that it is protected by the work-product doctrine or attorney-client privilege is required to produce a privilege log that must 'describe the nature of the documents, communications, or tangible things not produced or disclosed -- and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.' Fed. R. Civ. P. 26(b)(5)(A)(ii). Plaintiff has failed utterly to demonstrate that it cannot comply with this requirement without waiving the protection it claims for the withheld documents, particularly in light of the flexibility Rule 26 permits with respect to identification of withheld materials. Plaintiff essentially asks Barlow and the court to accept its determination at face value that such a waiver would occur. It does not provide information sufficient to enable Barlow or the court to meaningfully evaluate the contention.")

Case Date Jurisdiction State Cite Checked
2018-09-17 Federal NC

Chapter: 55.12
Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, Case. No. 3:13-cv-14207, Case No. 3:13-cv-20976, 2015 U.S. Dist. LEXIS 115425 (S.D. W. Va. Aug. 28, 2015)
(ordering a supplemental log, because the defendant used boilerplate log language; "Ultimately, the creation of an adequate privilege log requires a delicate balancing act -- on the one hand, the withholding party must not supply too little or indecipherable information, and on the other, the withholding party must not reveal too much detail for fear that the privileged information itself may seep into the log.")

Case Date Jurisdiction State Cite Checked
2015-08-28 Federal WV

Chapter: 55.12
Case Name: Neelon v. Blair Krueger, Civ. A. No. 12-cv-11198-IT, 2015 U.S. Dist. LEXIS 29146 (D. Mass. March 10, 2015)
(finding that a category log was not adequate in the circumstances of the case; "[A]lthough Plaintiff argues that any additional specificity would reveal the content of privileged documents, the court disagrees. By way of example, Plaintiff could have provided more precise dates, an identification of the nature of the communications, the approximate number of documents involved, the name of all individuals receiving or sending particular communications, and the general subject matter of the withheld documents.")

Case Date Jurisdiction State Cite Checked
2015-03-10 Federal MA

Chapter: 55.12
Case Name: Veolia Water Solutions & Technologies Support v. Siemens Industry, Inc., No. 5:11-CV-00296-FL, 2014 U.S. Dist. LEXIS 165747 (E.D.N.C. Nov. 25, 2014)
(finding that a privilege log entry waived the litigant's attorney-client privilege; "SiemensPriv 0751 is not privileged, as the description in the privilege log encompasses the entirety of the content of the document, thus waiving any privilege that may have attached thereto.")

Case Date Jurisdiction State Cite Checked
2014-11-25 Federal NC

Chapter: 55.12
Case Name: Judicial Watch, Inc. v. United States Dep't of Housing & Urban Dev., Civ. A. No. 12-1785 (ESH), 2014 U.S. Dist. LEXIS 25882, at *18, *19-20 (D.D.C. Feb. 28, 2014)
(finding the Government's privilege log was adequate, even though it did not identify which protection the government relied upon; "[P]laintiff argues that defendant has failed to discharge its duty under FOIA because it 'solely . . . used general 'buzz words' to justify its withholding.'. . . Among the terms about which plaintiff complains are: 'possible litigation,' 'brief to be filed,' 'draft brief,' 'internal deliberation,' 'suggested revisions,' 'conveying research,' 'discussing and weighing approaches,' and 'draft internal talking points.'" (internal citation omitted); "An example from defendant's Vaughn index is instructive. In its justification for withholding document 253, the defendant writes, '[t]his document is an email chain in which attorneys are discussing and weighing approaches to take in possible forthcoming litigation.'. . . This entry uses two of the phrases identified by plaintiff as 'buzz words.' However, these phrases provide the Court with the very details necessary to analyze which, if any, of the relevant privileges are implicated by this document. This description demonstrates the presence of both the attorney work product privilege and the attorney-client privilege and therefore the specific 'approaches' being discussed as well as the particular 'possible . . . litigation' cannot be disclosed. To require HUD to provide further detail would in effect allow the Vaughn index requirements to swallow the very privileges Exemption 5 is designed to protect.")

Case Date Jurisdiction State Cite Checked
2014-02-28 Federal DC B 8/14

Chapter: 55.12
Case Name: Toensing v. United States Dep't of Justice, Civ. A. No. 11-1215 (BAH), 2013 U.S. Dist. LEXIS 162158, at *22 (D.D.C. Nov. 14, 2013)
("The D.C. Circuit has made it clear that 'a Vaughn index may also contain brief or categorical descriptions when necessary to prevent the litigation process from revealing the very information the agency hopes to protect.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-11-14 Federal DC B 5/14

Chapter: 55.12
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("Lawson responds by arguing that '[p]rivilege logs do not need to be precise to the point of pedantry.' . . . . According to Lawson, if its narratives were any more descriptive, they would reveal the privileged communications it is trying to protect."; "The fact that certain entries refer to documents which forward legal advice or contain such advice does not necessarily constitute waiver with respect to those entries.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 55.101
Case Name: Smith v. James C. Hormel Sch. of the Va. Inst. of Autism, Civ. A. No. 3:08cv00030, 2010 U.S. Dist. LEXIS 95668, at *20 (W.D. Va. Sept. 14, 2010)
("The Smiths' conduct, however, cannot be ignored and warrants sanction. As noted earlier, despite the fact that the Smiths were proceeding pro se, Mr. Smith has years of litigation experience at a major international law firm. Certainly he is aware of Rule 26(b)(5)'s notification requirement. The Smiths have admitted that at least one of the emails in question was responsive to VIA's 2009 discovery requests. Yet it took them nearly a year to identify it on a privilege log. There is simply no excuse for this delay. As such, the court imposes sanctions against the Smiths in the amount of VIA's fees and costs attributable to moving to compel the Katzerman emails. Counsel for VIA are directed to submit an affidavit of its fees and costs within ten (10) days.")

Case Date Jurisdiction State Cite Checked
2010-09-14 Federal VA

Chapter: 55.104
Case Name: In re Behr Dayton Thermal Prods., LLC, Case No. 3:08-cv-326, 2013 U.S. Dist. LEXIS 81069, at *17 (S.D. Ohio June 10, 2013)
(holding that a litigant claiming work product protection had to specify the exact date on which it first anticipated litigation; rejecting defendant Aramark's claim that it anticipated litigation when plaintiff filed its complaint, because Aramark denied the allegations; "[B]oth the author of the memorandum and the intended recipient are unlisted and unascertainable. As such, it cannot be said with any degree of certainty that this document involves communication to or from counsel.")

Case Date Jurisdiction State Cite Checked
2013-06-10 Federal OH B 4/14

Chapter: 55.104
Case Name: Rhoades Indus., Inc. v. Bldg. Materials Corp. of Am., 254 F.R.D. 238, 240-41 & n.4 (E.D. Pa. 2008)
("Even though Judge Pallmeyer rejected the Magistrate's Order to log every message contained within an e-mail string sent to an attorney, her approach does require that each version of an email string (i.e. a forward or reply of a previous email message) must be considered as a separate, unique document. . . . Based on this approach, each message of the string which is privileged must be separately logged in order to claim privilege in that particular document. . . . For example, an email string consisting of four email messages would have four distinct versions: (1) the most recent version consisting of Email 4 (most recent), Email 3, Email 2, and Email 1 (original email), (2) a prior version consisting of Email 3, Email 2, and Email 1, (3) a prior version consisting of Email 2 and Email 1, and (4) the original Email 1. Additionally there could be other email strings consisting of some or all of Emails 1-4.")

Case Date Jurisdiction State Cite Checked
2008-01-01 Federal PA B 8/13

Chapter: 55.105
Case Name: In re Behr Dayton Thermal Prods., LLC, Case No. 3:08-cv-326, 2013 U.S. Dist. LEXIS 81069, at *17 (S.D. Ohio June 10, 2013)
(holding that a litigant claiming work product protection had to specify the exact date on which it first anticipated litigation; rejecting defendant Aramark's claim that it anticipated litigation when plaintiff filed its complaint, because Aramark denied the allegations; "[B]oth the author of the memorandum and the intended recipient are unlisted and unascertainable. As such, it cannot be said with any degree of certainty that this document involves communication to or from counsel.")

Case Date Jurisdiction State Cite Checked
2013-06-10 Federal OH B 4/14

Chapter: 55.202
Case Name: Progressive Southeastern Insurance Co. v. Arbormax Tree Service, LLC, 5:16-CV-662-BR, 2018 U.S. Dist. LEXIS 159222 (E.D.N.C. Sept. 17, 2018)
(analyzing log requirements in a third party insurance context; "When a party withholds information on the basis of privilege, including work-product protection and attorney-client privilege, it must expressly assert the privilege objection in response to the particular discovery request involved. Id. (b)(5)(A). In addition, the party must serve with its discovery responses a privilege log in conformance with Rule 26(b)(5)(A). See id. The privilege log must 'describe the nature of the documents, communications, or tangible things not produced or disclosed -- and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.' Id. (emphasis added). 'A party's conclusory assertion that a document is privileged is inadequate to meet the burden imposed by Rule 26(b)(5)(A).'")

Case Date Jurisdiction State Cite Checked
2018-09-17 Federal NC

Chapter: 55.202
Case Name: Liguria Foods, Inc. v. Griffith Labs., Inc., No. C 14-3041-MWB, 2017 U.S. Dist. LEXIS 35370 (N.D. Iowa March 13, 2017)
(condemning boilerplate objections using phrases such as "to the extent" and "subject to" privilege protection; "The parties' attempts to invoke privileges as the bases for various objections, as indicated in the table, are, likewise, deficient, because they violate the requirements of Rule 26(b)(5)(A)(ii). Conspicuously absent from either parties' objections based on 'privileges' is the required list or log that describes the pertinent documents without disclosing the allegedly privileged communications they contain.")

Case Date Jurisdiction State Cite Checked
2017-03-13 Federal IA

Chapter: 55.202
Case Name: Hartford Casualty Ins. Co. v. First Specialty Insurance Corp., Case No. 5:16-cv-00407 (HRL), 2016 U.S. Dist. LEXIS 113309 (N.D. Cal. Aug. 24, 2016)
("First Specialty may not maintain privilege or work-product claims without logging each withheld document in the manner required by FRCP 26(b)(5)(A).")

Case Date Jurisdiction State Cite Checked
2016-08-24 Federal CA

Chapter: 55.202
Case Name: Bloomingburg Jewish Educ. Ctr. v. Vill. of Bloomingburg, No. 14-cv-7250 (KBF), 2016 U.S. Dist. LEXIS 35192, at *3, *17-18 (S.D.N.Y. Mar. 18, 2016)
(finding that defendant town had not presented sufficient evidence to support privilege or work product protection for a communications between the town and West End, described as "a public relations and communications strategy firm"; "The Town Defendants do not identify a single case in which a court allowed a party to avoid having to collect, review, and log privileged communications and produce those that do not fall under the privilege. Having staked out this position, the Town Defendants have not asked for an opportunity to garner more support for their assertion of privilege, and there is no ground to grant the Town Defendants another shot. Because of the Town Defendants' delay in taking the necessary steps of collection and creation of a privilege log, they have forfeited their opportunity to delay production of this material to plaintiffs further by just now commencing what would surely be a protracted document-by-document dispute over this material.")

Case Date Jurisdiction State Cite Checked
2016-03-18 Federal NY B 8/16

Chapter: 55.202
Case Name: JDS Therapeutics, LLC v. CVS Pharmacy, Inc., 15-cv-4365 (JSR), 2015 U.S. Dist. LEXIS 145634 (S.D.N.Y. Oct. 22, 2015)
(holding that products tests can serve work product protection; "Plaintiffs, by their own admission, have declined to comply with Rule 26(b)(5)(A) on the basis that doing so 'would disclose counsel's pre-filing investigation, mental processes, and work-product, and would identify potential non-testifying expert consultants in violation of Rule 26.' Thus, plaintiffs' novel argument is that the privilege log itself would be privileged. This borders on the frivolous. Rule 26(b)(5) does not end with the caveat, 'if the party feels like it.' It is in no way optional. Nor does it matter that plaintiffs feel the creation of a privilege log would be 'burdensome and wasteful.'").

Case Date Jurisdiction State Cite Checked
2015-10-22 Federal NY

Chapter: 55.202
Case Name: DRFP, LLC v. The Republica Bolivariana de Venezuela, Case No. 2:04-cv-793, 2014 U.S. Dist. LEXIS 164700 (S.D. Ohio Nov. 24, 2014)
("If it had actually withheld documents on this basis, a log was mandatory. Fed.R.Civ.P. 26(b)(5).")

Case Date Jurisdiction State Cite Checked
2014-11-24 Federal OH

Chapter: 55.202
Case Name: Galena St. Fund, L.P. v. Wells Fargo Bank, N.A., Civ. A. No. 12-cv-00587-BNB-KMT, 2014 U.S. Dist. LEXIS 31257, at *29-30 (D. Colo. Mar. 10, 2014)
(analyzing a claim by plaintiff, an investor in mortgage backed trusts; "Wells Fargo became aware of its production of privileged documents in February 2013 and engaged its document review vendor to identify the scope of the problem. . . . On March 25, 2013, Wells Fargo notified Galena and invoked the protections of Rule 26(b)(5)(B). . . . Throughout April and May, the parties became aware of the production of additional privileged documents, and Wells Fargo invoked the protections of Rule 26(b)(5)(B) with respect to the additional documents on June 21, 2013.")

Case Date Jurisdiction State Cite Checked
2014-03-10 Federal CO B 8/14

Chapter: 55.202
Case Name: Genesco, Inc. v. Visa U.S.A., Inc., 296 F.R.D. 559, 581, 582, 582 n.5, 584, 584-85 (M.D. Tenn. 2014)
(holding that the attorney-client privilege and the work product doctrine protected communications relating to a forensic expert's investigation into a cyberattack in Genesco's computer network; also concluding a non-testifying expert's disclosure did not waive the expert's protection; "Genesco next asserts the attorney client and work product privileges to bar Visa's discovery requests for Sisson's [Genesco's General Counsel] deposition and his records and communications during his investigation of the cyberattack and Visa's assessments and fines. Attorneys' factual investigations 'fall comfortably within the protection of the attorney-client privilege.'. . . This privilege extends to the Stroz firm [outside consultant who assisted inside counsel and outside counsel Kilpatrick Townsend & Stockton in investigating a cyberattack on Genesco's computer system] that assisted counsel in his investigation."; "For most actions, this Court requires a privilege log, but a study of the history of law reflects that most rules eventually give rise to exceptions where the facts warrant. Moreover, Rule 26(b)(4)(D) does not require a privilege log, only information that 'describes the nature of the documents, communications, or tangible things not produced or disclosed -- and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.' Rule 26(b)(5)(A)(ii) also does not require a privilege log."; "'Moreover, to disclose the details for a privilege log of documents exchanged between Sisson and Stroz would infringe upon Genesco's counsel and his consultant's mental processes that are entitled to absolute protection in this Circuit. . . . Thus, to require a privilege log for the assertion of these privileges for Genesco's counsel and his agent, the Stroz firm, would itself violate the work product privilege.'"; "These privileges arise from the relationship between Genesco and the Stroz firm for which Genesco's affidavits are appropriate and sufficient to enable the Court to decide whether the privilege attaches."; "This Court and other courts require a privilege log for most cases, but here given the international scope of this controversy and the circumstances of the retention of a consultant computer expert to assist Genesco's counsel in a complex computer investigation, this action fits squarely within Upjohn [Upjohn Co. v. United States, 449 U.S. 383 (1981)]. Given that this controversy involves Genesco's retail establishments through the world, the individual listing of each document to Genesco's counsel for determining privilege seems impracticable and unnecessary to decide this privilege issue in light of Upjohn. The Court, however, will require a privilege log for any document that was prepared by a Genesco employee, but was not addressed directly to Genesco's counsel as such factual circumstances fall outside of Upjohn. Genesco also cannot withhold documents prepared in its ordinary business, as reflected by the Court's ruling that remedial measures that Genesco took in response to Trustwave's report must be produced because the Trustwave [outside forensic investigator of cyber attack] report reflects that those measures were undertaken in the ordinary course of business, not for Genesco's counsel."; "Based upon Precision of New Hampton [Precision of New Hampton. Inc. v. Tri Component Prods. Corp., No. C12-2020, 2013 U.S. Dist. LEXIS 79847 (N.D. Iowa June 5, 2013)], the Court concludes that there is not any waiver of the attorney client privilege. Assuming a waiver based upon disclosure of the Stroz report, the limitation on the nontestifying expert consultant would still bar the Stroz discovery,as that protection arises under Rule 26(b)(4)(D) that serves different purposes and does not permit of waiver. Precision of New Hampton. Inc., 2013 U.S. Dist. LEXIS 79847, 2013 WL 2444047, at *3 ('where a party enjoys protection under Rule 26(b)(4)(D), the protection is not subject to waiver.').")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal TN B 6/14

Chapter: 55.202
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 627 (D. Nev. 2013)
("While there are various means by which this may be accomplished, typically, a party will attempt to satisfy this burden by submitting a privilege log.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NV B 3/14

Chapter: 55.202
Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011)
("In this case, Interbake provided a privilege log in which it identified the nature of each document, the date of its transmission or creation, the author and recipients, the subject, and the privilege asserted. Although the log is not detailed, if the assertions contained in it are credited, a court could reasonably conclude that all of the elements described in Rule 26(a)(5) and the test set forth in Jones had been met. While it is true, as the Board argues, that the attorney-client privilege does not apply simply because documents were sent to an attorney, see Simon v. G.D. Searle & Co., 816 F.2d 397, 403 (8th Cir. 1987), Interbake's log does more than that. It also shows that the communications concerned an investigation closely linked to the ongoing NLRB adjudication. Accordingly, we conclude that the district court did not abuse its discretion in concluding that the privilege log had made a prima facie showing that the three documents in question were protected from production by the attorney-client privilege."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

Case Date Jurisdiction State Cite Checked
2011-01-01 Federal

Chapter: 55.205
Case Name: Williams v. Big Picture Loans, LLC, Civ. A. No. 3:18-mc-1, 2018 U.S. Dist. LEXIS 43775 (E.D. Va. March 16, 2018)
("Martorello's second argument overlooks the language of the full Subpoena that Aranca received. Exhibit A to the Subpoena states that Aranca is required to produce the requested documents pursuant to Rule 34. But that exhibit is attached to a form subpoena, which notes throughout that Aranca's obligations are set by Rule 45, and even includes a full page with the relevant text of that rule. See Subpoena at 1, 3. As a result, Aranca would have been fully aware that the rule number mentioned in Exhibit A was a typographical error, which does not make the Subpoena substantively deficient. Thus, both of Martorello's facial attacks on the Subpoena fail, and the Court must turn to the merits of his motion.")

Case Date Jurisdiction State Cite Checked
2018-03-16 Federal VA

Chapter: 55.205
Case Name: Williams v. Big Picture Loans, LLC, Civ. A. No. 3:18-mc-1, 2018 U.S. Dist. LEXIS 43775 (E.D. Va. March 16, 2018)
("Aranca's objections were clearly untimely. The Subpoena was served on October 27, 2017, and the original production date was November 15. The parties later agreed to extend that deadline to November 30. But the parties' agreement cannot change the plain language of Rule 45, which requires objections to be served 'before the earlier of' the production date or 14 days after service of the subpoena. Fed. R. Civ. P. 45(d)(2)(B). Accordingly, Aranca needed to object before November 10, 14 days after October 27 or secure an extension of time from the Court. The parties' communications do not indicate that the extension of the production date was also intended to apply to Aranca's objections. Indeed, Horton did not appear to be aware that Aranca was in non-compliance with Rule 45 when he served the objections on November 22. . . . Under the circumstances presented by the record, the Court can find no good cause to consider Aranca's objections, and they must be considered waived."; "However, Aranca's waiver of its objections does not affect Martorello's privilege claims. 'A party cannot object to a subpoena duces tecum served on a nonparty, but rather, must seek a protective order or make a motion to quash.'. . . In other words, even though Aranca waived any privilege objections that it might have, Martorello could still have preserved his privilege challenges by timely moving to quash. Whether Martorello's privilege arguments can be entertained, therefore, depends on whether his motion was timely.")

Case Date Jurisdiction State Cite Checked
2018-03-16 Federal VA

Chapter: 55.205
Case Name: Williams v. Big Picture Loans, LLC, Civ. A. No. 3:18-mc-1, 2018 U.S. Dist. LEXIS 43775 (E.D. Va. March 16, 2018)
("A movant must satisfy the threshold requirement of filing a "timely motion" before a court can quash a subpoena under the mandatory provisions of Rule 45(d)(3). See Fed. R. Civ. P. 45(d)(3)(A). That rule does not explain what makes a motion timely, so district courts have developed two approaches to decide the timeliness of a motion to quash. Under the older approach, the motion must be filed within the 14-day deadline for serving objections set by Rule 45(d)(2)(B). . . . Most courts, however -- including courts within the Fourth Circuit -- consider a motion timely if it is filed before the return date of the subpoena."; "Here, Martorello's motion is untimely under either approach. It was not filed until December 21, well after the 14-day objection deadline of November 10. Likewise, the motion was filed more than a month after the original return date of November 15, and several weeks after the amended return date of November 30. Consequently, Martorello's motion is not timely within the meaning of Rule 45(d)(3)(A).")

Case Date Jurisdiction State Cite Checked
2018-03-16 Federal VA

Chapter: 55.205
Case Name: Williams v. Big Picture Loans, LLC, Civ. A. No. 3:18-mc-1, 2018 U.S. Dist. LEXIS 43775 (E.D. Va. March 16, 2018)
(" It is unclear if this exception is even applicable to untimely motions to quash, as Moon was discussing exceptions to untimely objections to subpoenas. See 232 F.R.D. at 636. The timeliness analysis for objections, under Rule 45(d)(2)(B), is different than the timeliness inquiry for motions to quash, under Rule 45(d)(3)(A).")

Case Date Jurisdiction State Cite Checked
2018-03-16 Federal VA

Chapter: 55.205
Case Name: Tex. Brine Co., LLC v. Occidental Chem. Corp., No. 17-6075, No. 17-6076, 2018 U.S. App. LEXIS 1286 (10th Cir. Jan. 19, 2018)
(dismissing an appeal because the privilege protection issue was not yet ripe, since there was no log created in connection with Rule 45 discovery; "Assessing a claim of attorney-client privilege, or even a claim of work product doctrine, when a person withholds subpoenaed information, however, necessarily requires a sufficient factual record. 'Only when the district court has been exposed to the contested documents and the specific facts . . . can it make a principled determination as to whether the attorney-client privilege in fact applies. Any attempt to make this type of determination without this factual foundation amounts to nothing more than a waste of judicial time and resources.'. . . This is why Fed. R. Civ. P. 45(e)(2)(A) requires a person or entity withholding information under a claim of privilege or work product to 'describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.' Without knowing the nature of the documents, neither the requesting party nor the court can possibly assess the claim. In this case, Fed. R. Civ. P. 45(e)(2)(A) required the production of a privilege log. . . . Prior to appealing, Texas Brine did not produce a privilege log regarding the documents Frontier withheld."; "While the district court could have ruled otherwise, the court gratuitously allowed Texas Brine a second chance to produce a privilege log regarding the withheld documents. Texas Brine instead appealed, effectively arguing it should not have to produce any documents or a privilege log. Why Texas Brine believes it can assert a blanket claim of privilege over its communications with Frontier without complying with Fed. R. Civ. P. 45(e)(2)(A) or Fed. R. Civ. P. 26(b)(5)(A) is beyond us. The panel pressed Texas Brine on this subject at oral argument. Texas Brine responded that other courts have granted a blanket privilege over communications between a client and public relations firm without the benefit of a privilege log or viewing the documents in camera. . . . Without the benefit of a privilege log or inspection of documents, we are left with an insufficient factual record -- the exact problem Fed. R. Civ. P. 45(e)(2)(A) aims to prevent. Texas Brine has only itself to blame for the predicament in which it finds itself. Without the facts necessary to assess Texas Brine's claims of attorney-client privilege and work product, this dispute is not fit for appellate review.")

Case Date Jurisdiction State Cite Checked
2018-01-19 Federal

Chapter: 55.205
Case Name: Wal-Mart Stores, Inc. v. City of Pontiac Gen. Emps.' Ret. Sys., 314 F.R.D. 138, 140 (D. Del. 2016)
(finding that Wal-Mart had to prepare a privilege log under Rule 45 when withholding privileged documents plaintiffs relying on the fiduciary exception to obtain Wal-Mart's internal investigation documents; "Rule 45 further requires that, when a party asserts a claim of privilege, it must expressly make the claim and describe the documents with a certain level of specificity. However, Rule 45 does not explicitly state that the failure to do so results in a waiver of one's ability to claim privilege. . . . The court concludes that Wal-Mart's previous disclosure does not amount to a waiver of its ability to assert applicable privileges; Wal-Mart retains its ability to assert a claim of privilege with respect to the information requested under the Subpoenas. Accordingly, Wal-Mart's motion to quash is granted in this regard.")

Case Date Jurisdiction State Cite Checked
2016-02-24 Federal DE B 8/16

Chapter: 55.205
Case Name: In re Grand Jury Proceedings, No. 15-1555, 2015 U.S. App. LEXIS 15911 (1st Cir. App. Sept. 4, 2015)
("The requirement to comply with Rule 45 applies even where, as here, the allegedly privileged documents are in the possession of the client's attorneys, rather than the client, and the client has either knowledge of or access to them.").

Case Date Jurisdiction State Cite Checked
2015-09-04 Federal

Chapter: 55.205
Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *18 (W.D. Wash. Sept. 19, 2014)
("[T]he responsibility to make objections to a Rule 45 subpoena duces tecum belongs to the nonparty served with the subpoena.")

Case Date Jurisdiction State Cite Checked
2014-09-19 Federal WA

Chapter: 55.205
Case Name: Voxpath RS, LLC v. LG Elects. U.S.A., Inc., No. MC 13-004-TUC-CKJ, 2013 U.S. Dist. LEXIS 153177, at *9, *11 (D. Ariz. Oct. 23, 2013)
("[A] nonparty's failure to timely make objections to a Rule 45 subpoena duces tecum generally requires the court to find that any objection has been waived." (footnote omitted); "[A] nonparty's failure to timely make objections to a Rule 45 subpoena duces tecum generally requires the court to find that any objection has been waived."; "Here, it appears Mansuripur [plaintiff's expert] timely objected to the subpoena and asserts privileges in those objections. However, Mansuripur has not subsequently provided a privilege log."; "[A]lthough Mansuripur has not provided a privilege log for nine months, the Court cannot say that Mansuripur has acted in bad faith because, apparently good faith settlement negotiations were ongoing for most of that time. Mansuripur did respond to the subpoena, did assert a privilege claim, and did not refuse to appear for a deposition.")

Case Date Jurisdiction State Cite Checked
2013-10-23 Federal AZ B 5/14

Chapter: 55.205
Case Name: Maxtena, Inc. v. Marks, Civ. A. No. DKC 11-0945, 2013 U.S. Dist. LEXIS 42332, at *17-18, *32 (D. Md. Mar. 26, 2013)
("It is undisputed that Maxtena never filed a Rule 45(c) motion or otherwise argued that the subpoenas issued by Marks to the State sought disclosure of privileged documents. Additionally, neither Maxtena nor the State provided a privilege log describing the documents withheld by Mr. Dann until after the instant dispute arose. Although disappointing, neither of these omissions is sufficient -- in light of the procedural posture -- to result in any waiver or forfeiture. As noted, the State entities' compliance with the subpoenas was stayed pending resolution of its motions to quash. This stay necessarily extended the deadline for Maxtena to file its own Rule 45(c) motion until the court established a new compliance period.")

Case Date Jurisdiction State Cite Checked
2013-03-26 Federal MD B 3/14

Chapter: 55.206
Case Name: Butler v. Anglero, Civ. No. CL16-341, 2017 Va. Cir. LEXIS 8 (Va. (Chesapeake) Cir. Ct. Jan. 12, 2017)
("Any claims that documents are protected by attorney-client privilege should be addressed by providing a privilege log.")

Case Date Jurisdiction State Cite Checked
2017-01-12 State VA

Chapter: 55.206
Case Name: Heisenger v. Cleary, X04HHDCV126049497S, 2014 Conn. Super. LEXIS 1835 (Conn. Super. Ct. July 29, 2014)
("The deponent is ethically bound to protect and preserve the confidentiality of privileged communications. That necessarily requires that the deponent first identify what documents are subject to the privilege, and what documents are not privileged. The court has no reason to doubt the representations of an officer of the court that there is a good faith basis for the claim of attorney client privilege for the withheld documents."; "Nonetheless, the preferred practice in modern discovery is to provide a privilege log summarizing the essentials of the withheld documents so that, if necessary, the question of the applicability of the privilege to particular documents can be reviewed.")

Case Date Jurisdiction State Cite Checked
2014-07-29 State CT

Chapter: 55.206
Case Name: Loudoun County Asphalt, L.L.C. v. Wise Guys Contracting, L.L.C., 79 Va. Cir. 605, 606 (Va. Cir. Ct. 2009)
(granting defendant's motion to compel discovery from a cross-defendant; "Fru-Con [Construction Co.] asserts that it is not required to produce certain documents because of confidentiality, privilege or work product, yet it provided no privilege log or logs as required by Rule 4:1(b)(6). If Fru-Con asserts confidentiality, privilege or work product in its future responses to discovery, then it must provide a privilege lot describing the documents not produced as required by the discovery rules.") [Chamblin, J.]

Case Date Jurisdiction State Cite Checked
2009-01-01 State VA B 10/10

Chapter: 55.206
Case Name: Tafas v. Dudas, 530 F. Supp. 2d 786, 802 (E.D. Va. 2008)
("Before Tafas can demand that the USPTO produce a privilege log substantiating any claims of privilege, he must first show that documents that belong in the administrative record are missing. See Blue Ocean Inst., 503 F. Supp. 2d at 371-72. Because Tafas failed to make this showing, the USPTO was not required to produce a privilege log, and Magistrate Judge Jones did not commit legal error by failing to order the production of one. The Court will thus deny Tafas's objection to this portion of Magistrate Judge Jones's decision.")

Case Date Jurisdiction State Cite Checked
2008-01-01 Federal VA

Chapter: 55.206
Case Name: Hawkins v. Norfolk S. Ry., 71 Va. Cir. 285, 287, 288, 289 (Va. Cir. Ct. 2006)
(assessing a work product claim for materials prepared by an insurance adjuster for a plaintiff involved in a vehicle-train accident; "Virginia Supreme Court Rule 4:1(b)(6) requires that the party withholding material and claiming privilege must make this claim expressly and with a description of 'the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection'"; noting the debate in Virginia about the discoverability of materials created by an insurance company during its investigation; "This Court opines that the case-by-case analysis test is more appropriate in this situation. The case-by-case analysis test is more flexible, as it considers the reasonable foreseeability that litigation could arise by considering the facts of the case, specifically, (1) the severity of plaintiff's injuries; (2) the awareness that the insured plaintiff may have been negligent in bringing about the accident; (3) notification of defendant that a claim may be pursued; (4) retention of counsel or material sought was requested by counsel; (5) the routine of investigation of plaintiff's claim, and other factors." (emphasis in original); "[B]y appropriately using the case-by-case test, the Court rules that the adjuster's log was prepared in anticipation of litigation and should, therefore, be considered work product.")

Case Date Jurisdiction State Cite Checked
2006-01-01 State VA

Chapter: 55.206
Case Name: Board of Dirs. of Port Royal Condo. Unit Owners' Ass'n v. Crossland Sav. F.S.B., 19 Va. Cir. 8, 9 (Va. Cir. Ct. 1989)
(withholding a ruling on defendant's privilege assertions until the defendant filed a "Vaughan" index)

Case Date Jurisdiction State Cite Checked
1989-01-01 State VA

Chapter: 55.401
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "Understandably, lawyers are concerned about making a mistake and producing a privileged document, which often leads to overdesignation. Because of this risk, and because disputes about privilege are common, the senior lawyers in the case, especially the senior Delaware lawyers, must provide guidance about how the privilege assertion process should unfold. As important, senior lawyers, including senior Delaware lawyers, must ensure that the guidance provided was followed. Preparing a privilege log with integrity requires the involvement and oversight of senior lawyers who know the applicable standards, understand the roles of the individuals involved in the communications, and can make textured judgment calls on a principled basis."; "The involvement of senior practitioners appears to have been entirely lacking in this case. Mechel's lead counsel was candid about his lack of involvement. He was away when the log was produced and did not look at it until after the disputes arose. There is no indication that Delaware counsel had any involvement in the preparation of the log. Mechel seems to have forwarded to Justice as its initial log whatever PriceWaterhouseCoopers and Huron gave Mechel.")

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 55.402
Case Name: In re Abilify Aripiprazole Prods. Liab. Litig., Case No. 3:16-md-2734, 2017 U.S. Dist. LEXIS 213493 (N.D. Fla. Dec. 29, 2017)
("[T]he privilege logs contain the information required in the Court's February 7, 2017, Order for Preservation and Production of Documents, Electronically Stored Information, and Privileged Documents. (The 'ESI Order') . . . The Court's ESI Order required Defendants to include on their logs: the nature of the privilege; the factual basis for the privilege; the date of the document; the name of the author and all recipients and whether any person identified is an attorney or an employee of the Defendants' legal department; a description of the general subject matter contained in the document and the type of document sufficient to allow Plaintiffs to assess the claimed Privilege and to allow the Court to rule on the claimed Privilege; the location of the document; and the custodian.")

Case Date Jurisdiction State Cite Checked
2017-12-29 Federal FL

Chapter: 55.402
Case Name: Hunton & Williams LLP v. U.S. Environmental Protection Agency, Civ. A. No. 15-1203 (RC), Civ. A. No. 15-1207 (RC), Civ. A. No. 15-1208 (RC), 2017 U.S. Dist. LEXIS 48907 (D.D.C. March 31, 2017)
("Nor can the information missing from the Corps' Vaughn index be drawn from its declaration. . . . The Corps' declaration states only that, in general: 'Information that was withheld pursuant to the Attorney-Client Privilege contained confidential communications regarding legal consultation regarding the jurisdictional determination and other legal issues related to the Saltworks between the USACE and personnel and their attorneys, and between USACE, EPA, and Army attorneys. The subject of these confidential communications were not released or made known to third parties and therefore these communications are protected from disclosure.' However, these broad and vague statements, in conjunction with a bare Vaughn index, are insufficient. The agency may not 'offer[] nothing more than conclusory assertions and blanket affirmations' to support its use of the attorney-client privilege. . . . This general statement cannot overcome the otherwise inadequate Vaughn index because it fails to provide necessary document-specific information such as the identities of the client and lawyer and whether legal advice was sought. . . . Thus, because the Corps has not satisfactorily demonstrated the elements of the attorney-client privilege, the Court denies it summary judgment on the basis of that privilege.")

Case Date Jurisdiction State Cite Checked
2017-03-31 Federal DC

Chapter: 55.402
Case Name: Bacchi v. Massachusetts Mutual Life Insurance Company, Civ. A. No. 12-cv-11280-DJC, 2015 U.S. Dist. LEXIS 80552 (D. Mass. June 22, 2015)
("Generally, a privilege claim is made by serving a privilege log that separately lists each document, specifies who created the document and all recipients, and concisely states the basis for the claim of privilege.")

Case Date Jurisdiction State Cite Checked
2015-06-22 Federal MA

Chapter: 55.402
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "Experienced counsel know these requirements, and any junior associate could find a case reciting them with minimal effort.")

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 55.402
Case Name: SEC v. Yorkville Advisors, LLC, 12 Civ. 7728 (GBD) (HBP), 2014 U.S. Dist. LEXIS 72090 (S.D.N.Y. May 27, 2014)
(finding that the SEC waived its work product protection by producing an inadequate log late; "Local Civil Rule 26.2 requires that a party asserting a privilege in response to a document request provide: (i) the type of document, e.g., letter or memorandum; (ii) the general subject matter of the document; (iii) the date of the document; and (iv) the author of the document, the addressees of the document, and any other recipients, and, where not apparent, the relationship of the author, addressees, and recipients to each other . . . ."

Case Date Jurisdiction State Cite Checked
2014-05-27 Federal NY

Chapter: 55.402
Case Name: Khasin v. Hershey Co., Case No. 5:12-cv-01862-EJD-PSG, 2014 U.S. Dist. LEXIS 23886, at *12-13 (N.D. Cal. Feb. 21, 2014)
(finding that Hershey did not waive its privilege by producing an inadequate log, but ordering a new log; "These arguments, however, are based on an incorrect recitation of the requirements for a privilege log. Khasin cites an out of district case, which applied a paraphrased version of the Second Circuit's test for a sufficient privilege log. That test requires a greater degree of specificity than the one required by the Ninth Circuit." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 55.402
Case Name: Charter Oak Fire Ins. Co. v. Am. Capital, Ltd., Civ. A. No. DKC 09-0100, 2013 U.S. Dist. LEXIS 180504, at *25-26 (D. Md. Dec. 24, 2013)
("A party can sustain this burden through a properly prepared privilege log that identifies each document withheld, and contains information regarding the nature of the privilege/protection claimed, the name of the person making/receiving the communication, the date and place of the communication, and the document's general subject matter. . . . If, after this has been done, the requesting party challenges the sufficiency of the asserted privilege/protection, the asserting party may no longer rest on the privilege log, but bears the burden of establishing an evidentiary basis -- by affidavit, deposition transcript, or other evidence -- for each element of each privilege/protection claimed for each document or category of document. A failure to do so warrants a ruling that the documents must be produced because of the failure of the asserting party to meet its burden.")

Case Date Jurisdiction State Cite Checked
2013-12-24 Federal MD B 5/14

Chapter: 55.402
Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at *8-9 (D.D.C. Dec. 23, 2013)
(analyzing the waiver impact of an insured seeking recovery of attorneys fees he spent in an earlier litigation; approving the insured's privilege log; "Feld's privilege log meets the requirements of the Federal Rules. It is a lengthy spreadsheet listing every document, in chronological order, over which Feld claims privilege. The log includes the following information about each document: date, title (typically, the subject line of an email), type of document (that is, email, attachment, or standalone computer file), document identification number, from, to, and carbon copy recipients, the privilege type (that is, attorney-client privilege, attorney work product, or both), any additional notes, and the 'privilege basis.' The 'privilege basis' column includes detailed descriptions of each individual document.")

Case Date Jurisdiction State Cite Checked
2013-12-23 Federal DC B 5/14

Chapter: 55.402
Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376 (W.D. Va. 2012)
("'Parties seeking to challenge a claim of privilege have sparse information at their disposal. Because they do not actually have access to the privileged documents, they must rely on the opposing party's description of them in the privilege log. "Accordingly, the descriptions in the log must satisfy the claiming party's burden."' ePlus Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 252 (E.D.Va. 2012) (quoting Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 272 (E.D.Va. 2004)")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 55.402
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859 (E.D. Va. 2012)
("To meet its burden in this regard, the Army provides the Buchholz Declaration and the Vaughn index. The Vaughn index identifies all Category B documents withheld pursuant to the attorney-client privilege, as well as the parties to the communication, date, and mode of communication. Together, the Vaughn index and Buchholz Declaration provide the subject-matter of the communications and that the subject-matter is confidential. As a result, the Army has identified the documents in question with reasonable specificity, as required for an independent assessment of the claimed exemption, and there is no reason to question the Army's good faith in this regard.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 55.402
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859 (E.D. Va. 2012)
("In its declarations and Vaughn index, the Army has demonstrated with reasonable specificity that the withheld documents include no reasonably segregable information beyond that already released, and there is no reason to question the Army's good faith in this regard. See Sussman v. U.S. Marshals Service, 494 F.3d 1106, 1117, 377 U.S. App. D.C. 460 (D.C. Cir. 2007) (agencies entitled to presumption they complied with obligation to disclose reasonably segregable material); Armstrong v. Executive Office of the President, 97 F.3d 575, 578, 321 U.S. App. D.C. 118 (D.C. Cir. 1996) (where government declarations demonstrate with reasonable specificity why documents cannot be further segregated, there is no need for in camera review).")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 55.402
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 252 (E.D. Va. 2012)
("Parties seeking to challenge a claim of privilege have sparse information at their disposal. Because they do not actually have access to the privileged documents, they must rely on the opposing party's description of them in the privilege log. 'Accordingly, the descriptions in the log must satisfy the claiming party's burden.' Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 272 (E.D. Va. 2004).")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 55.402
Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 501 (4th Cir. 2011)
("Procedurally, the party must 'expressly make the claim' and 'describe the nature of the documents . . . in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.' Fed. R. Civ. P. 26(a)(5)(A)."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

Case Date Jurisdiction State Cite Checked
2011-01-01 Federal

Chapter: 55.402
Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011)
("'When a party relies on a privilege log to assert these privileges, the log must "as to each document . . . set[ ] forth specific facts that, if credited, would suffice to establish each element of the privilege or immunity that is claimed.' Bowne, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993)."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

Case Date Jurisdiction State Cite Checked
2011-01-01 Federal

Chapter: 55.402
Case Name: Loudoun County Asphalt, L.L.C. v. Wise Guys Contracting, L.L.C., 79 Va. Cir. 605, 606 (Va. Cir. Ct. 2009)
(granting defendant's motion to compel discovery from a cross-defendant; "Fru-Con [Construction Co.] asserts that it is not required to produce certain documents because of confidentiality, privilege or work product, yet it provided no privilege log or logs as required by Rule 4:1(b)(6). If Fru-Con asserts confidentiality, privilege or work product in its future responses to discovery, then it must provide a privilege lot describing the documents not produced as required by the discovery rules.")

Case Date Jurisdiction State Cite Checked
2009-01-01 State VA

Chapter: 55.402
Case Name: Rein v. United States Patent & Trademark Office, 553 F.3d 353, 370 (4th Cir. 2009)
(holding that the log created by federal agencies was inadequate, and reversing the District Court's opinion that the log was satisfactory; "When examining the adequacy of a Vaughn index entry, the focal point is whether it contains an adequate factual basis to support the claimed exemption. As noted, the Agencies have claimed the deliberative process privilege for all of the challenged documents, and the attorney-client privilege for a few others. Thus, to be adequate, each entry must provide enough facts for the district court to determine that the document was 'predecisional' and 'deliberative.' And the documents also withheld pursuant to attorney client privilege must contain enough facts for the district court to determine that the document contains confidential communication between a government lawyer and a government entity (the client), in the context of 'securing a legal opinion, legal services[,] or assistance in legal proceedings,' and that the privilege has not been waived. See In re Grand Jury Investigation, 399 F.3d 527, 532-33 (2d Cir. 2005); Maine v. U.S. Dep't of the Interior, 298 F.3d 60, 71 (1st Cir. 2002).")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal

Chapter: 55.402
Case Name: Cappetta v. GC Servs. Ltd. P'ship, Civ. A. No. 3:08CV288, 2008 U.S. Dist. LEXIS 103902, at *12 (E.D. Va. Dec. 24, 2008)
("An adequate 'privilege log' should contain: 'a brief description or summary of the contents of the document, the date the document was prepared, the person or persons who prepared the document, the person to whom the document was directed, or for whom the document was prepared, the purpose in preparing the document, the privilege or privileges asserted with respect to the document, and how each element of the privilege is met as to that document.' Burns, 164 F.R.D. at 594 [Burns v. Imagine Films Entertainment, Inc., 164 F.R.D. 589 (W.D.N.Y. 1996)].")

Case Date Jurisdiction State Cite Checked
2008-12-24 Federal VA

Chapter: 55.402
Case Name: Sayre Enters., Inc. v. Allstate Ins. Co., Civ. No. 5:06cv00036, 2006 U.S. Dist. LEXIS 89097, at *5 (W.D. Va. Dec. 8, 2006)
("Having provided Sayre [plaintiff] with a privilege log identifying the nature of each withheld document, to whom it was sent, by whom it was prepared, its preparation date and a general reference to its content, Allstate [insurance carrier] has complied with its Rule 26(b) and 34(b) obligations in this matter. Moreover, the opinion of the undersigned, the restricted scope, the detail and the specificity of the privilege log constitute a prima facie showing of its entitlement herein to rely on the privilege").

Case Date Jurisdiction State Cite Checked
2006-12-08 Federal VA BS 6/07

Chapter: 55.402
Case Name: Kawar v. Bouk, 71 Va. Cir. 295, 297 (Va. Cir. Ct. 2006)
("As to all the requests where Defendants objected on the grounds of attorney client privilege and/or work product, Defendants may withhold documents on those grounds so long as a privilege log is provided to Plaintiff. The privilege log should specify the nature of the document (e.g., letter, memorandum, note, etc.), the date of the document, to whom the document was sent, by whom the document was prepared, and a general description of the content of the document. Upon receiving such a privilege log, Plaintiff may contest the assertion of such privilege by filing an appropriate motion.")

Case Date Jurisdiction State Cite Checked
2006-01-01 State VA

Chapter: 55.403
Case Name: UPMC v. CBIZ, Inc., Case No. 3:16-cv-204, 2018 U.S. Dist. LEXIS 52810 (W.D. Pa. March 29, 2018)
("Based on this Court's skimming of the over 1,500-item privilege log submitted to this Court by CBIZ – not Plaintiffs, many of the document withheld by Plaintiffs relate to UPMC's mandatory IRS approval request – not counsel's advice to UPMC – and many do not even have an attorney listed on the privilege log. . . . Even had Plaintiffs – rather than CBIZ – presented this privilege log to the Court, the information contained on the privilege log is insufficient to determine whether the privilege attaches and Plaintiffs failed to make any document-specific arguments or isolate groupings of the over 1,500 items on the privilege log.")

Case Date Jurisdiction State Cite Checked
2018-03-29 Federal PA

Chapter: 55.403
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 7965 (5th Cir. App. May 4, 2017)
("Here, BDO's privilege log does not provide sufficient detail to meet its burden of allowing opposing counsel or the trial court to determine whether entries merely described as 'legal advice,' or that included or courtesy copied attorneys, actually contained privileged legal advice. . . . Furthermore, not only does the log include conclusory descriptions of 'legal advice,' it does so in the context of communications with in-house counsel -- an area courts have acknowledged presents unique challenges when it comes to establishing attorney-client privilege."; "The privilege log's lack of description, coupled with Bower's sworn declaration that many of the communications described as 'legal advice' were not made for the purpose of seeking and imparting legal advice, compels the conclusion that the log entries warranted closer scrutiny than the trial court provided. The district court therefore erred when it determined, on the showing made, that these entries sufficed to prove BDO's prima facie case of privilege.")

Case Date Jurisdiction State Cite Checked
2017-05-04 Federal

Chapter: 55.403
Case Name: The William Powell Co. v. National Indemnity Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 55148 (S.D. Ohio April 11, 2017)
("The other eleven entries which identify the author as 'Not Available' have been withheld by OneBeacon on the basis of work product protection. These entries do not provide sufficient information to show the documents qualify as work product, which 'protects from disclosure documents prepared by or for an attorney in anticipation of litigation.'. . . The privilege log fails to include any information to indicate such documents were prepared by an attorney or by another individual at the request of an attorney for litigation purposes, and OneBeacon has provided no other argument or evidence showing why such documents are protected as work product. As such, OneBeacon has not met its burden of proof as to these documents for which it has not identified an author. Thus, OneBeacon must supply the missing author information and provide sufficient additional information in a revised privilege log to show the documents qualify as work product, or else produce these documents it has improperly withheld under the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2017-04-11 Federal OH

Chapter: 55.403
Case Name: The William Powell Co. v. National Indemnity Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 55148 (S.D. Ohio April 11, 2017)
("[T]he fact that OneBeacon has provided a more detailed summary for similar communications that specifies the purpose of the communication -- such as 'providing legal advice' or 'requesting legal advice' (documents which Powell does not challenge) -- raises questions about the purpose of those communications for which it has omitted this information.")

Case Date Jurisdiction State Cite Checked
2017-04-11 Federal OH

Chapter: 55.403
Case Name: The William Powell Co. v. National Indemnity Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 55148 (S.D. Ohio April 11, 2017)
("As to the remaining email documents on pages one through six of the privilege log, OneBeacon has not presented any evidence, by affidavit or otherwise, to demonstrate that the email documents for which it has not identified a recipient were prepared in anticipation of litigation or for trial. The Court is unable to discern from the cursory descriptions of the emails that they were prepared at the request of counsel and in anticipation of litigation so as to qualify for protection as work product. Thus, OneBeacon must either revise the privilege log to provide the missing information, or else it must produce those communications for which it has improperly asserted work product protection.")

Case Date Jurisdiction State Cite Checked
2017-04-11 Federal OH

Chapter: 55.403
Case Name: Norton v. Town of Islip, County fo Suffolk, CV 04-3079 (PKC) (SIL), 2017 U.S. Dist. LEXIS 33977 (E.D.N.Y. March 9, 2017)
(holding that categorical privilege logs are sometimes acceptable, but not in the circumstances before the court; "The Court has thoroughly reviewed the Amended Privilege Log and its deficiencies are immediately glaring. To start, numerous entries fail to identify any date. . . . Moreover, the log does not identify the sender, recipient, or their respective titles, on certain documents. . . . Although the Court recognizes that a document may be privileged even if an attorney is not on the correspondence, nothing on the log indicates whether these documents were prepared for the purposes of obtaining legal advice or in anticipation of litigation, and thus there is no explanation as to why they should be considered privileged."; "The descriptions and subject matter of the documents provide no greater insight into whether the documents are privileged. Defendants list the subject matter of a majority of the documents as either 'Norton Litigation,' 'Law Enforcement,' 'Norton Article 78 Litigation,' and 'Litigation.' Although the Court does not doubt that they are about these topics in some way, the log fails to explain whether they were created for the purposes of obtaining legal advice, contain legal advice, sought out legal advice, or were prepared in anticipation of litigation. Other descriptions contain no reference to the litigation at all.")

Case Date Jurisdiction State Cite Checked
2017-03-09 Federal NY

Chapter: 55.403
Case Name: Anderson v. Mountain States Mutual Casualty Co., Civ. A. No. 15-cv-01316-RM-NYW, 2016 U.S. Dist. LEXIS 56733 (D. Colo. April 28, 2016)
("Privilege log entries may be deemed insufficient when they are missing 'a descriptive indication as to why the document fits the elements of the privilege -- for example, that it was not shared with a larger group and therefore not confidential." Id. Privilege logs like Defendant's, which merely reflect the bates numbers of the documents and include generic descriptions like 'additional claim notes' simply do not amount to a proper privilege log."; "To the extent that Defendant intends to invoke privilege on any document or redaction, it must propound updated privilege logs no later than May 5, 2016.")

Case Date Jurisdiction State Cite Checked
2016-04-28 Federal CO

Chapter: 55.403
Case Name: Anderson v. Mountain States Mutual Casualty Co., Civ. A. No. 15-cv-01316-RM-NYW, 2016 U.S. Dist. LEXIS 56733 (D. Colo. April 28, 2016)
("Privilege log entries may be deemed insufficient when they are missing 'a descriptive indication as to why the document fits the elements of the privilege -- for example, that it was not shared with a larger group and therefore not confidential." Id. Privilege logs like Defendant's, which merely reflect the bates numbers of the documents and include generic descriptions like 'additional claim notes' simply do not amount to a proper privilege log."; "To the extent that Defendant intends to invoke privilege on any document or redaction, it must propound updated privilege logs no later than May 5, 2016.")

Case Date Jurisdiction State Cite Checked
2016-04-28 Federal CO

Chapter: 55.403
Case Name: United States ex rel. Hamrick v. Glaxosmithkline LLC, 814 F.3d 10, 17 (1st Cir. 2016)
("The log is quite detailed, indicating for each document its date, all authors and recipients, the privilege asserted, and a narrative recitation of the basis for the assertion of privilege.")

Case Date Jurisdiction State Cite Checked
2016-02-17 Federal B 8/16

Chapter: 55.403
Case Name: Summerville v. Moran, No. 1:14-cv-02099-WTL-TAB, 2016 U.S. Dist. LEXIS 6384, at *11 12 (S.D. Ind. Jan. 20, 2016)
(finding that an inadequate log did not result in a waiver; "Leaberry [defendant's lawyer] provides simple, often one-word descriptions of the documents such as 'email' and 'draft correspondence.' . . . Such vague and generic descriptions do not allow the Court or Summerville to assess Leaberry's claim of privilege. These descriptions give no indication as to whether documents were created by or for an attorney, or whether they were intended to be kept confidential. The deficiencies in Leaberry's privilege log make it impossible for the Court to uphold his claims of attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-01-20 Federal IN B 7/16

Chapter: 55.403
Case Name: Kaplan v. S.A.C. Capital Advisors, L.P., 12 Civ. 9350 (VM) (KNF), 2015 U.S. Dist. LEXIS 94610 (S.D.N.Y. July 21, 2015)
("With respect to the documents listed on the defendants' Privilege Log as belonging to the 'Common Interest' privilege type, the plaintiffs have failed to identify the underlying privilege, e.g., attorney-client or work-product, that warrants the invocation of the common interest doctrine in this case. Consequently, the plaintiffs have failed to 'expressly make the claim' that the information sought is privileged or subject to protection. Fed. R. Civ. P. 26(b)(5)(A)(i). Since the plaintiffs have not expressly claimed any applicable underlying privilege, the descriptive text provided in their Privilege Log respecting the documents sought to be withheld from disclosure does not enable the defendants to 'assess the claim' of privilege, as required by Fed. R. Civ. P. 26(b)(5)(A)(ii). As a result, the documents withheld from disclosure as belonging to the 'Common Interest' privilege type must be produced.")

Case Date Jurisdiction State Cite Checked
2015-07-21 Federal NY

Chapter: 55.403
Case Name: Spear v. Fenkell, Civ. A. No. 13-02391, 2015 U.S. Dist. LEXIS 79648 (E.D. Pa. June 19, 2015)
("Mr. Fenkell [Defendant] claims that Alliance, by failing to mention the 'common-interest' exception in its privilege logs, has waived it. . . . Mr. Fenkell does not cite to any authority for this proposition in either his reply brief or in his initial brief. . . . His argument is unconvincing. The 'common-interest' exception is not a 'separate' privilege from the attorney-client privilege."; "The common-interest doctrine is an exception to an exception. The third-party disclosure rule provides that sharing an ostensibly privileged communication with a non-privileged third party waives the privilege. The common-interest exception provides that information shared among those with a common interest in a litigating position does not waive the privilege. The underlying privilege that protects the Alliance documents is the attorney-client privilege. This privilege was asserted in the privilege log. The privilege log did not have to spell out a potentially applicable exception (third-party disclosure) and then mention the applicable rebuttal (the common-interest doctrine). A sanction ordering disclosure of privileged communications is strong medicine, and may 'be imposed only if the District Court finds bad faith, wilfulness, or fault.'")

Case Date Jurisdiction State Cite Checked
2015-06-19 Federal PA

Chapter: 55.403
Case Name: Plaza Insurance Company v. Lester, Civ. A. No. 14-cv-01162-LTB-CBS, 2015 U.S. Dist. LEXIS 72438 (D.D.C. June 4, 2015)
("'Plaza's Revised Privilege Log and First Supplemental Privilege Log suffers from this infirmity. For many of the withheld documents, Plaza simply states 'Attorney/Client Privilege and Work Product Protection: communications between North American Risk Services/Plaza representatives and legal counsel for North American Risk Services/Plaza.' That description, and many others on the privilege logs, are of little or no value to the court.'")

Case Date Jurisdiction State Cite Checked
2015-06-04 Federal DC

Chapter: 55.403
Case Name: Carolina Casualty Ins. Co. v. Oahu Air Conditioning Service, Inc., No. 2:13-cv-1378 WBS AC, 2015 U.S. Dist. LEXIS 40786 (E.D. Cal. March 30, 2015)
(analyzing a situation in which an insurance company settled a claim against its insured after a hazard waste spill, and then sues the three companies which are allegedly responsible for packing the hazard waste; "Other entries contain information that may be meaningful to plaintiff, but mean nothing to the court, and therefore make it impossible for the court to determine whether a protection or privilege exists. For example, some entries are described as relating to 'California Biennial Report.' While the court could use external sources to research what this is, it will not rely on such sources to do the work that plaintiff should have done. Plaintiff's privilege log must give enough information for the court to determine whether a protection or privilege exists, in the event PCS renews its motion to compel.")

Case Date Jurisdiction State Cite Checked
2015-03-30 Federal CA

Chapter: 55.403
Case Name: Scott v. Chipotle Mexican Grill, Inc., 12-CV-08333 (ALC) (SN), 2015 U.S. Dist. LEXIS 40176 (S.D.N.Y. March 27, 2015)
("Chipotle's updated descriptions of the relevant documents are sufficiently detailed to give the plaintiffs adequate notice of the underlying claims of privilege because they identify that the documents are discussing legal advice on a particular topic.")

Case Date Jurisdiction State Cite Checked
2015-03-27 Federal NY

Chapter: 55.403
Case Name: Indianapolis Airport Authority v. Travelers Property Casualty Co. of Am., No. 1:13-cv-01316-JMS-TAB, 2014 U.S. Dist. LEXIS 176607 (S.D. Ind. Dec. 23, 2014)
(analyzing protections in a first party insurance case; "Merely declaring that such communications contained legal advice does not shield Travelers from production when the topics discussed are part of its ordinary course of business. Travelers must provide a specific explanation on how these particular topics are privileged, and it has failed to do so.")

Case Date Jurisdiction State Cite Checked
2014-12-23 Federal IN

Chapter: 55.403
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "Understandably, lawyers are concerned about making a mistake and producing a privileged document, which often leads to overdesignation. Because of this risk, and because disputes about privilege are common, the senior lawyers in the case, especially the senior Delaware lawyers, must provide guidance about how the privilege assertion process should unfold. As important, senior lawyers, including senior Delaware lawyers, must ensure that the guidance provided was followed. Preparing a privilege log with integrity requires the involvement and oversight of senior lawyers who know the applicable standards, understand the roles of the individuals involved in the communications, and can make textured judgment calls on a principled basis."; "The involvement of senior practitioners appears to have been entirely lacking in this case. Mechel's lead counsel was candid about his lack of involvement. He was away when the log was produced and did not look at it until after the disputes arose. There is no indication that Delaware counsel had any involvement in the preparation of the log. Mechel seems to have forwarded to Justice as its initial log whatever PriceWaterhouseCoopers and Huron gave Mechel.")

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 55.403
Case Name: Judicial Watch, Inc. v. United States Dep't of Housing & Urban Dev., Civ. A. No. 12-1785 (ESH), 2014 U.S. Dist. LEXIS 25882, at *16-17 (D.D.C. Feb. 28, 2014)
(finding the Government's privilege log was adequate, even though it did not identify which protection the government relied upon; "[P]laintiff argues that defendant's Vaughn index is inadequate because defendant 'failed to demonstrate which specific privilege applies to which particular record.'. . . However, plaintiff fails to direct this Court to any legal authority that defendant is required to identify the relevant privilege, by name, in order to withhold or redact a document pursuant to Exemption 5. . . . To be sure, it would have been helpful for defendant to identify by name which specific privilege applies to which entries in its Vaughn index, as opposed to relying on Jih's [HUD attorney advisor] declaration. Yet, so long as the Court is able to determine the existence of each essential element of an incorporated privilege, defendant should not be penalized for its failure to identify a specific privilege by name.")

Case Date Jurisdiction State Cite Checked
2014-02-28 Federal DC B 8/14

Chapter: 55.403
Case Name: Mosley v. Am. Home Assurance Co., Case No. 13-20259-CIV-KING/GARBER, 2013 U.S. Dist. LEXIS 168016, at *8-9 (S.D. Fla. Nov. 26, 2013)
(analyzing privilege protection in a first party insurance situation; "Entries on American Home's privilege log note the withholding of 'Various post-suit emails [and correspondence] with attachments between Powers, McNalis, Torres, Teebagy, Luongo, its employees, and AHAC/AIG/Chartis' on the basis of attorney-client and work-product privileges as well as on relevance grounds. The vagueness of these entries prevents a reasonable evaluation of whether these documents are legitimately being withheld from production. American Home must not only describe the emails and attachments that are being withheld with more detail, including dates, authors, and recipients, but must also specify which privilege or grounds apply, and why, to the withholding of each. For documents being withheld on the basis of work-product privilege, American Home must indicate that those particular emails were created primarily in anticipation of litigation. Even where a document can be characterized as being helpful or important to the instant litigation, if the document has actually been prepared for non-litigation purposes, it must be produced.")

Case Date Jurisdiction State Cite Checked
2013-11-26 Federal FL B 5/14

Chapter: 55.403
Case Name: Lowe's Home Ctrs., Inc. v. THF Clarksburg Dev. Two, L.L.C., Civ. A. No. 1:12 cv 72, 2013 U.S. Dist. LEXIS 96978, at *5-6 (N.D. W. Va. July 11, 2013)
(ordering defendant to supplement an incomplete log within seven days; "The Court agrees with Lowe's that the privilege log does not comply with the requirements of the Federal Rules or the Local Rules. First, and possibly most importantly, the Privilege Log has a general title of 'Communication Protected by Attorney Client Work Product Doctrine.' There is no 'Attorney Client Work Product Doctrine,' however, at least in West Virginia, and THF has therefore failed to 'identify the nature of the privilege that is being claimed' as to each document.")

Case Date Jurisdiction State Cite Checked
2013-07-11 Federal WV B 4/14

Chapter: 55.403
Case Name: Warren v. Bastyr Univ., No. 2:11-cv-01800-RSL, 2013 U.S. Dist. LEXIS 71269, at *4, *4-5 (W.D. Wash. May 17, 2013)
("Simply adding an attorney to a distribution list does not mean that the communication requests or reflects the advice of counsel."; "More fundamentally, defendant's privilege log identifies at least twenty emails between non-attorneys, with no indication that Mr. Burgon was involved at all. . . . Most of these emails are described as 'Forward of attorney-client communications from Steve Burgon.' The Court has no doubt that an employee who seeks the advice of counsel may forward the substance of that advice to others within the organization who have a need to know without losing its privileged character. It is not, however, clear that the underlying communications that are being forwarded are privileged. It is just as likely that they are simply business communications passed through the hands of counsel. This suspicion is heightened by the fact that one entry is specifically described as 'regarding legal advice from Steve Burgon,' which raises the obvious concern that the remaining entries do not, in fact, reflect legal advice.")

Case Date Jurisdiction State Cite Checked
2013-05-17 Federal WA B 3/14

Chapter: 55.403
Case Name: Prowess, Inc. v. Raysearch Labortories AB, Civ. Case No. WDQ-11-1357, 2013 U.S. Dist. LEXIS 21449, at *6 n.4 (D. Md. Feb. 11, 2013)
April 3, 2013 (PRIVILEGE POINT)

"Litigants Must Explain Which Protection Justifies Withholding Documents"

In general conversation, most clients and many lawyers use the term "privilege" when referring either to the attorney-client privilege or to the work product doctrine. However, lawyers must be more precise when justifying the withholding of protected documents in litigation.

In Prowess, Inc. v. Raysearch Labortories AB, the court noted that plaintiff's pleading justifying their withholding of documents "consistently refers to the communications at issue as 'privileged,' without clarifying which doctrine it intends to invoke." Civ. Case No. WDQ-11-1357, 2013 U.S. Dist. LEXIS 21449, at *6 n.4 (D. Md. Feb. 11, 2013). Explaining that the attorney-client privilege and the work product doctrine "include different elements, and serve entirely different purposes," the court bluntly held that it could not find that plaintiff had justified the withholding "without knowing precisely which protection is being asserted, and without knowing which arguments apply to each doctrine." Id.

To make matters more complicated for litigants, the work product doctrine itself involves numerous variations among federal courts applying just a single sentence in the federal rules. The next several Privilege Points will focus on some of these differences.

Case Date Jurisdiction State Cite Checked
2013-02-11 Federal MD
Comment:

key case


Chapter: 55.404
Case Name: Hopkins v. Board of County Commissioners of Wilson County, Kansas, Case No. 15-cv-2072-CM-TJJ, 2018 U.S. Dist. LEXIS 122356 (D. Kansas July 23, 2018)
("The identity of the person(s) for whom the document was prepared, as well as the identities of those to whom the document and copies of the document were directed, 'including an evidentiary showing based on competent evidence supporting any assertion that the document was created under the supervision of an attorney.'")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal KS

Chapter: 55.404
Case Name: BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Co., 14-CV-09367 (JMF) (SN), 2018 U.S. Dist. LEXIS 124631 (S.D.N.Y. July 23, 2018)
(analyzing common interest, work product and privilege log issues against defendant Deutsche Bank; focusing among other things on communications between Deutsche Bank as indenture trustee and as loan servicer; "Deutsche Bank admits that they fail to identify an attorney for 670 documents for which they assert attorney-client or work product protection. Yet, Deutsche Bank did not edit their privilege log to identify an attorney or modify privilege assertions.")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal NY

Chapter: 55.404
Case Name: UPMC v. CBIZ, Inc., Case No. 3:16-cv-204, 2018 U.S. Dist. LEXIS 52810 (W.D. Pa. March 29, 2018)
("Based on this Court's skimming of the over 1,500-item privilege log submitted to this Court by CBIZ – not Plaintiffs, many of the document withheld by Plaintiffs relate to UPMC's mandatory IRS approval request – not counsel's advice to UPMC – and many do not even have an attorney listed on the privilege log. . . . Even had Plaintiffs – rather than CBIZ – presented this privilege log to the Court, the information contained on the privilege log is insufficient to determine whether the privilege attaches and Plaintiffs failed to make any document-specific arguments or isolate groupings of the over 1,500 items on the privilege log.")

Case Date Jurisdiction State Cite Checked
2018-03-29 Federal PA

Chapter: 55.404
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 7965 (5th Cir. App. May 4, 2017)
("We agree with the EEOC that many of BDO's log entries lack sufficient detail to permit a determination as to whether the entire document or portions thereof are protected from disclosure. . . . For example, numerous log entries fail to identify a sender, recipient, date, or provide a substantive description of the subject matter."; "Some entries have only vague descriptions such as 'discrimination claim,' 'internal investigation,' or 'work environment claim.'")

Case Date Jurisdiction State Cite Checked
2017-05-04 Federal

Chapter: 55.404
Case Name: The William Powell Co. v. National Indemnity Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 55148 (S.D. Ohio April 11, 2017)
("The other eleven entries which identify the author as 'Not Available' have been withheld by OneBeacon on the basis of work product protection. These entries do not provide sufficient information to show the documents qualify as work product, which 'protects from disclosure documents prepared by or for an attorney in anticipation of litigation.'. . . The privilege log fails to include any information to indicate such documents were prepared by an attorney or by another individual at the request of an attorney for litigation purposes, and OneBeacon has provided no other argument or evidence showing why such documents are protected as work product. As such, OneBeacon has not met its burden of proof as to these documents for which it has not identified an author. Thus, OneBeacon must supply the missing author information and provide sufficient additional information in a revised privilege log to show the documents qualify as work product, or else produce these documents it has improperly withheld under the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2017-04-11 Federal OH

Chapter: 55.404
Case Name: The William Powell Co. v. National Indemnity Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 55148 (S.D. Ohio April 11, 2017)
("OneBeacon must produce a legend identifying these and any other individuals who appear in OneBeacon's privilege log but who have not yet been identified.")

Case Date Jurisdiction State Cite Checked
2017-04-11 Federal OH

Chapter: 55.404
Case Name: N.J. Manufacturers Ins. Co. v. Brady, Civ. A. No. 3:15-CV-02236, 2017 U.S. Dist. LEXIS 8268 (M.D. Pa. Jan. 20, 2017)
("In general, a privilege log typically must 'identify each document and the individuals who were parties to the communications, providing sufficient detail to permit a judgment as to whether the document is at least potentially protected from disclosure.' The party asserting the privilege has the burden of showing that the elements of the privilege are met.")

Case Date Jurisdiction State Cite Checked
2017-01-20 Federal PA

Chapter: 55.404
Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("The Court will first address the attorney-client privilege. For almost all of these documents, Fluidmaster states that they were sent to Fluidmaster by Howrey, a law firm whose dominant and possibly only relationship with Fluidmaster was attorney-client, or by Joanne Lichtman, a Howrey attorney. Fluidmaster says most of the documents were prepared by counsel and/or relate to litigation strategy. Although Fluidmaster only lists 'Howrey' in the 'From' column for many of these documents, without identifying any specific attorney, documents that originated with Howrey probably were created by an attorney (or someone working at an attorney's direction) in an attorney-client relationship with Fluidmaster within the meaning of California law under these circumstances. Still, Fluidmaster should identify the attorney or Howrey employee who created the documents so that the Court and Plaintiffs can evaluate properly whether the attorney-client privilege applies to those documents. And Fluidmaster has not made the preliminary showing required to assert the attorney-client privilege with respect to the document Bates-numbered FMPRIV_00429 because the Court does not know and Fluidmaster does not explain why a communication from CAPANALYSIS c/o Joanne Lichtman is covered by the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2016-11-08 Federal IL

Chapter: 55.404
Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("Plaintiffs correctly note that, while Fluidmaster listed Lichtman as 'Legal Personnel in Communication' and described the documents at issue as having been 'prepared by counsel,' Fluidmaster did not put any information in the 'From,' 'To,' 'CC,' and 'BCC' columns of its privilege log when describing documents FMPRIV_00002-00005. Plaintiffs claim that this lack of information renders the privilege log deficient and impedes their ability to assess whether any privilege may have been waived. Technically, Plaintiffs are correct. Fluidmaster does not address this issue in its reply brief. Based on context, the Court speculates that Lichtman or someone working with her or under her direction prepared interview memos addressed to 'the File' or something similar after they spoke with Fluidmaster's employees. But that is conjecture. And, as the Court noted earlier, Fluidmaster's description of these documents on its privilege log is a bit vague and only minimally sufficient to invoke the attorney-client privilege in the first place. Therefore, on the present record, Plaintiffs are correct that Fluidmaster has not met its burden to show these documents are privileged against production. And, for example, if the reports were created as Fluidmaster says they were but were shared with someone not within the attorney-client privilege, then the privilege potentially would be waived and Plaintiffs would be entitled to see them. There is no way to know that from the entries on the log as it now stands."; "Therefore, Fluidmaster's Motion for Protective Order will be denied as to the Lichtman Reports unless Fluidmaster cures the deficiency with its privilege log by November 22, 2016, which is 14 days from the date of this Memorandum Opinion and Order.")

Case Date Jurisdiction State Cite Checked
2016-11-08 Federal IL

Chapter: 55.404
Case Name: Velsicol Chemical, LLC v. Westchester Fire Insurance Co., No. 15 C 2534, 2016 U.S. Dist. LEXIS 109736 (N.D. Ill. Aug. 18, 2016)
("[T]he 'undated document' lacks an author and a recipient. Thus, we are left to speculate as to who prepared this document, and more significantly, who received this document. There are certainly indications that this document may have been prepared by a Westchester (or predecessor) employee. Additionally, the document has a footer on each page reading, 'Privileged & Confidential Includes Attorney/Client Communication & Attorney Work Product Material.' However, as the withholding party, Westchester has the burden of establishing the existence of both the attorney-client and work-product privileges."; "Westchester has not met its burden. Not only are we left to wonder who prepared this document, and for what purpose, we have no sense of who received this document, and whether any efforts were made to maintain the privileged or confidential nature of the document; all of which, as noted above, Westchester has the burden of proving.")

Case Date Jurisdiction State Cite Checked
2016-08-18 Federal IL

Chapter: 55.404
Case Name: Chrimar Sys. Inc. v. Cisco Sys. Inc., Case No. 13-cv-01300-JSW (MEJ), 2016 U.S. Dist. LEXIS 54375, at *29 (N.D. Cal. Apr. 21, 2016)
("As to the second category, it is not clear these emails are privileged as they include unknown senders and recipients. While the privilege log states these emails memorialize legal advice from a named attorney, it does not identify the other recipients or senders named in the emails or in the 'To' or 'From' fields in emails included in the body of the emails Mr. Austermann [named inventor] sent to himself. . . . Furthermore, the inclusion of unidentified email recipients can 'destroy[] the confidential nature of the communication absent an explanation of who the[] recipients were.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2016-04-21 Federal CA B 8/16

Chapter: 55.404
Case Name: Chrimar Sys. Inc. v. Cisco Sys. Inc., Case No. 13-cv-01300-JSW (MEJ), 2016 U.S. Dist. LEXIS 54375, at *29 (N.D. Cal. Apr. 21, 2016)
("As to the second category, it is not clear these emails are privileged as they include unknown senders and recipients. While the privilege log states these emails memorialize legal advice from a named attorney, it does not identify the other recipients or senders named in the emails or in the 'To' or 'From' fields in emails included in the body of the emails Mr. Austermann [named inventor] sent to himself. . . . Furthermore, the inclusion of unidentified email recipients can 'destroy[] the confidential nature of the communication absent an explanation of who the[] recipients were.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2016-04-21 Federal CA B 8/16

Chapter: 55.404
Case Name: Banks v. St. Francis Health Center, Inc., Case No. 15-cv-2602-JAR-TJJ, 2015 US. Dist. LEXIS 122955 (D. Kan. Sept. 15, 2015))
(holding that a plaintiff did not have to identify prospective clients; "The Court here declines to address whether the identities or names of potential clients who contacted Plaintiff's counsel about potential representation of their own possible discrimination claims, allegedly after hearing about Plaintiff's claims against Defendant, are themselves privileged information or otherwise protected from disclosure. As the Court previously pointed out to the parties, caselaw in this District suggests that client identities are not protected by the attorney-client privilege. However, given the concerns raised by Plaintiff's counsel and the fact that the purpose of the privilege log can be satisfied in this case without identifying the clients or potential clients, the Court will not require the inclusion of the names of the potential clients in the privilege log. Based upon the other information provided in Plaintiff's privilege log, Defendant can adequately assess the claim of privilege without the potential clients' name.").

Case Date Jurisdiction State Cite Checked
2015-09-15 Federal KS

Chapter: 55.404
Case Name: Banks v. St. Francis Health Center, Inc., Case No. 15-cv-2602-JAR-TJJ, 2015 U.S. Dist. LEXIS 122955 (D. Kan. Sept. 15, 2015)
(holding that a plaintiff did not have to identify prospective clients; "The Court here declines to address whether the identities or names of potential clients who contacted Plaintiff's counsel about potential representation of their own possible discrimination claims, allegedly after hearing about Plaintiff's claims against Defendant, are themselves privileged information or otherwise protected from disclosure. As the Court previously pointed out to the parties, caselaw in this District suggests that client identities are not protected by the attorney-client privilege. However, given the concerns raised by Plaintiff's counsel and the fact that the purpose of the privilege log can be satisfied in this case without identifying the clients or potential clients, the Court will not require the inclusion of the names of the potential clients in the privilege log. Based upon the other information provided in Plaintiff's privilege log, Defendant can adequately assess the claim of privilege without the potential clients' name.").

Case Date Jurisdiction State Cite Checked
2015-09-15 Federal KS

Chapter: 55.404
Case Name: GE v. United States, No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562 (D. Conn. Sept. 15, 2015)
("GE contends that, although it cannot always identify a document's author and recipient, it is still possible to ascertain from the content of a document that it reflects the seeking of or rendering of legal or tax advice. Perhaps and even likely so. Indeed, the Government itself claims privilege for certain of its documents without identification of author and recipient. But as a categorical matter the claim of privilege remains more tenuous and uncertain in the absence of a link to a communication."; "For this reason, I conclude that it is appropriate for this discrete category of standalone documents that are altogether bereft of the required author and recipient designations to be subject to independent review by a special master to be appointed in accordance with Fed. R. Civ. P. 53.").

Case Date Jurisdiction State Cite Checked
2015-09-15 Federal CT

Chapter: 55.404
Case Name: United States v. Louisiana, Civ. A. No. 11-470-JWD-RLB, 2015 U.S. Dist. LEXIS 100238 (M.D. La. July 31, 2015)
("The privilege log likewise fails to sufficiently explain the role of each identified recipient and sender with respect to communications with in-house counsel. While the Court is aware that DHH provided the job titles of the identified senders and recipients to the United States, the log still does not give enough information concerning the role of each individual within DHH, including information that would shed light on the reason for the communication. Many of the communications take place between in-house counsel and DHH employees. While the attorney client privilege can extend to communications between an organization's employees and its in-house counsel, the role of each person involved in that communication is crucial to determining applicability of the privilege.")

Case Date Jurisdiction State Cite Checked
2015-07-31 Federal LA

Chapter: 55.404
Case Name: Carolina Casualty Ins. Co. v. Oahu Air Conditioning Service, Inc., No. 2:13-cv-1378 WBS AC, 2015 U.S. Dist. LEXIS 40786 (E.D. Cal. March 30, 2015)
(analyzing a situation in which an insurance company settled a claim against its insured after a hazard waste spill, and then sues the three companies which are allegedly responsible for packing the hazard waste; "[T]he privilege log contains no 'key' to identify the senders and recipients of communications for which plaintiff claims privilege. While some of the names are known from other filings, some names are not familiar to the undersigned (although they may be familiar to PCS). An explicit statement of the identities of all senders and recipients of communications is essential for the court to make a determination of whether a protection or privilege exists. Also, it is not sufficient to identify a person simply as an attorney, attorneys' staff, investigator or investigator's staff, without indicating which entity that person is associated with and/or represents.")

Case Date Jurisdiction State Cite Checked
2015-03-30 Federal CA

Chapter: 55.404
Case Name: Indianapolis Airport Authority v. Travelers Property Casualty Co. of Am., No. 1:13-cv-01316-JMS-TAB, 2014 U.S. Dist. LEXIS 176607 (S.D. Ind. Dec. 23, 2014)
(analyzing protections in a first party insurance case; "There is not enough information to determine whether Sacks and Perry were acting in their professional capacities and whether coverage issues are privileged.")

Case Date Jurisdiction State Cite Checked
2014-12-23 Federal IN

Chapter: 55.404
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "The most glaring deficiency was 590 entries that contained no information other than the document date, the privilege asserted, and a description of the grounds for asserting the privilege. The entries lacked information identifying the parties to the communication or the attorney involved.")

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 55.404
Case Name: SEC v. Yorkville Advisors, LLC, 12 Civ. 7728 (GBD) (HBP), 2014 U.S. Dist. LEXIS 72090 (S.D.N.Y. May 27, 2014)
(finding that the SEC waived its work product protection by producing an inadequate log late; "Likewise, the descriptions in the February 15 Privilege Log are inadequately detailed. The February 15 Privilege Log provides descriptions for fifty allegedly privileged documents, which are grouped into ten entries. The subject matter descriptions are similarly uninformative: 'YA Global,' 'Mark Angelo,' 'Yorkville Advisors' or 'Greenshift.' . . . Although the privilege log identifies the authors and recipients for certain categories of documents, i.e., emails and letters, it fails to specify the authors and recipients for a majority of the documents, namely, documents categorized as 'Reports' and 'Tip/Complaint/Referral.'")

Case Date Jurisdiction State Cite Checked
2014-05-27 Federal NY

Chapter: 55.404
Case Name: Khasin v. Hershey Co., Case No. 5:12-cv-01862-EJD-PSG, 2014 U.S. Dist. LEXIS 23886 (N.D. Cal. Feb. 21, 2014)
April 9, 2014 (PRIVILEGE POINT)

"Decision Highlights Courts' Differing Privilege Log Requirements"

Although Fed. R. Civ. P. 26 does not require privilege logs, most courts expect them – and many courts specifically require them. However, courts take widely varying approaches to log requirements.

In Khasin v. Hershey Co., Case No. 5:12-cv-01862-EJD-PSG, 2014 U.S. Dist. LEXIS 23886 (N.D. Cal. Feb. 21, 2014), plaintiff challenged defendant Hershey's privilege log. The court rejected Khasin's argument that Hershey's log improperly "failed to provide the organizational positions of senders and recipients." Id. at *12. The court noted that plaintiff's arguments "are based on an incorrect recitation of the requirements for a privilege log" – because plaintiff relied on the Second Circuit's "test for a sufficient privilege log [that] requires a greater degree of specificity than the one required by the Ninth Circuit." Id. at *12-13. The court pointedly noted that "the Ninth Circuit's test does not require a privilege log to provide the organizational positions of senders and recipients." Id. at *14.

As in so many other areas, litigants must check the pertinent court's specific approach to both the substance and the logistics of privilege claims.

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA
Comment:

key case


Chapter: 55.404
Case Name: NAMA Holdings, LLC v. Related WMC LLC, C.A. No. 7924-VCL, 2014 Del Ch. LEXIS 304 (Del. Ch. Jan. 16, 2014)
("According to the Related Defendant's Participant List, Greenberg Traurig represented at least the following entities: The Related Group of Florida, Related CCD LLC, World, Network World Market Center, LLC, Alliance Network, LLC, and Alliance Network Holdings, LLC. When a Greenberg Traurig attorney appears on the Special Log, the entry does not identify which of these many entities the attorney is representing. The attorney's role could be critical for the viability of the privilege. During oral argument on the Motion, the Related Defendants' counsel ultimately argued that everything could be divined from the underling document, but that is precisely the problem. It cannot be divined from the log.")

Case Date Jurisdiction State Cite Checked
2014-01-16 State DE

Chapter: 55.404
Case Name: Mosley v. Am. Home Assurance Co., Case No. 13-20259-CIV-KING/GARBER, 2013 U.S. Dist. LEXIS 168016, at *8-9 (S.D. Fla. Nov. 26, 2013)
(analyzing privilege protection in a first party insurance situation; "Entries on American Home's privilege log note the withholding of 'Various post-suit emails [and correspondence] with attachments between Powers, McNalis, Torres, Teebagy, Luongo, its employees, and AHAC/AIG/Chartis' on the basis of attorney-client and work-product privileges as well as on relevance grounds. The vagueness of these entries prevents a reasonable evaluation of whether these documents are legitimately being withheld from production. American Home must not only describe the emails and attachments that are being withheld with more detail, including dates, authors, and recipients, but must also specify which privilege or grounds apply, and why, to the withholding of each. For documents being withheld on the basis of work-product privilege, American Home must indicate that those particular emails were created primarily in anticipation of litigation. Even where a document can be characterized as being helpful or important to the instant litigation, if the document has actually been prepared for non-litigation purposes, it must be produced.")

Case Date Jurisdiction State Cite Checked
2013-11-26 Federal FL B 5/14

Chapter: 55.404
Case Name: Freescale Semiconductor, Inc. v. Maxim Integrated Prods., Inc., A-13-CV-075-LY, 2013 U.S. Dist. LEXIS 155391, at *11-12, *12-13 (W.D. Tex. Oct. 30, 2013)
(concluding that a company could not claim privilege protection for the first call it received from a whistleblowing employee about possible misconduct within the corporation, but that the privilege could protect later communications between the anonyomous whistleblower and the company's lawyer; "[T]he anonymous whistleblower made three submissions via the EthicsPoint portal used by Maxim. An initial submission was made on December 14, 2011, and two follow-up communications were submitted on December 20, 2011, and February 24, 2012. Maxim's Chief Compliance Officer and General Counsel, Ed Medlin, communicated with the anonymous whistleblower twice via EthicsPoint -- once on December 14, 2011, in response to the initial submission and again on February 27, 2012, in response to the whistleblower's submission on February 24, 2012. Upon review of the documents containing these discussions, the Court determines that the initial submission made by the anonymous whistleblower on December 14, 2011, is not protected by the attorney-client privilege and should be produced. The initial submission is distinguishable from the questionnaires at issue in Upjohn [Upjohn Co. v. United States, 449 U.S. 383 (1981)] because it was made prior to the start of any investigation by Maxim into the specific allegations that Freescale's software was being improperly used at Maxim. There is also insufficient evidence to demonstrate that the anonymous whistleblower was seeking legal advice or that this information was somehow solicited by Maxim in order for Maxim's legal counsel to render legal advice to the company. Consequently, the Court concludes that the initial submission by the anonymous whistleblower is not protected by the attorney-client privilege and must be produced."; "However, the subsequent communications between Ed Medlin and the anonymous whistleblower via EthicsPoint are protected by the attorney-client privilege. . . . In the initial communication the whistleblower identifies him or herself as a Maxim employee. The content of the subsequent communications show that more specific information was being solicited from the anonymous whistleblower -- a Maxim employee -- in order for Maxim's General Counsel, Ed Medlin, to investigate the allegations and render legal advice to Maxim. Additionally, the content of the follow-up communications also clarifies that the messages were exchanged after Maxim had started its investigation into the anonymous whistleblower's claims.")

Case Date Jurisdiction State Cite Checked
2013-10-30 Federal TX B 5/14

Chapter: 55.404
Case Name: H&L Assocs. of Kan. City, LLC v. Midwestern Indem. Co., Case No. 12-2713-EFM-DJW, 2013 U.S. Dist. LEXIS 153252, at *23-24 (D. Kan. Oct. 25, 2013)
("If the entry is for a redaction, then unless the information is visible on the unredacted portions of the documents, the amended privilege log should contain the following information: (1) names and job titles of sender and recipient(s) of the emails or correspondence containing the redactions, (2) the purpose of preparing the redacted portion of the document or making the notation, (3) the basis for withholding discovery of the redacted portion or notation, and (4) any other pertinent information necessary to establish that the redacted portion or notation is privileged.")

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal KS B 5/14

Chapter: 55.404
Case Name: Viteri-Butler v. Univ. of Cal., Case No. CV 12-02651 PJH (KAW), 2013 U.S. Dist. LEXIS 142430, at *20 (N.D. Cal. Sept. 30, 2013
("An appropriate privilege log identifies the author of a document by name, not just by a description of the group of individuals that happens to include the author.")

Case Date Jurisdiction State Cite Checked
2013-09-30 Federal CA B 4/14

Chapter: 55.404
Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *37-38 (E.D. Wis. July 10, 2013)
("The contents of these documents are privileged, with one caveat. The documents reflect that they came from the email or computer of a Jennifer Nagle. The court has looked, without success, for reference to Nagle in the record. Assuming Nagle is affiliated with the law office of one of the joint defense attorneys the privilege applies. If she is a third party, the privilege has been waived. The parties should advise the court in writing if there is any dispute as to whether disclosure to Nagle waived the privilege.")

Case Date Jurisdiction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 55.404
Case Name: Little Hocking Water Ass'n v. E.I. Du Pont De Nemours & Co., Civ. A. 2:09-cv-1081, 2013 U.S. Dist. LEXIS 22213, at *33 (S.D. Ohio Feb. 19, 2013)
(finding that the privilege log should include the following information: "'The identity of the person(s) for whom the document was prepared, as well as the identities of those to whom the document and copies of the document were directed, "including an evidentiary showing based on competent evidence supporting any assertion that the document was created under the supervision of an attorney."'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 55.404
Case Name: Prowess, Inc. v. Raysearch Labs. AB, Civ. Case No. WDQ-11-1357, 2013 U.S. Dist. LEXIS 14433, at *11-12 (D. Md. Jan. 18, 2013)
(recognizing courts' different approaches to privilege protection for communications to and from patent agents, and ultimately concluding that the privilege did not protect them unless a patent agent was acting as a lawyer's agent; "UMB also asserts the attorney-client privilege for documents whose author is 'Unknown -- Presumably David Marks.'. . . [T]he proponent of the attorney-client privilege in a privilege log must provide 'the name of the person making/receiving the communication.'. . . Again, because it is UMB's burden to prove that these documents are privileged, this Court cannot find that documents are privileged based solely on UMB's representation that documents were presumably authored by Mr. Marks.")

Case Date Jurisdiction State Cite Checked
2013-01-18 Federal MD B 1/14

Chapter: 55.404
Case Name: Certain Underwriters at Lloyd's v. Taylor, Bean & Whitaker Mortgage Corp (In re Taylor, Bean & Whitaker Mortgage Corp.), 493 B.R. 872, 876 & n.4 (M.D. Fla. 2013)
("[T]he Court finds the privilege logs do not sufficiently describe the author(s) of the communications or the recipients, so as to permit the Court to access the applicability of the asserted privilege. For example, many of the authors and recipients of the communications have not been identified by Underwriters. As a result, the Court is unable to ascertain who such individuals are in relation to Underwriters, or what their role was in relation to the subject communication(s). A complete resolution of the claims of privilege by Underwriters depends upon the proper characterization of the relationships among the parties to the communications. Furthermore, in order to make an informed decision with respect to the documents claimed as privileged, the Court must review documents in camera." (footnote omitted); "'The privilege logs identify authors and recipients by name only -- no further information is provided. In addition, Underwriters' filings in relation to the Motion identify only a few of the individuals listed in the privilege logs.'")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 55.404
Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *16 (E.D. Va. Dec. 14, 2012)
("For all of the entries identified by ePlus for which there is neither an 'author' nor 'recipient' listed, the narrative description more than adequately identifies an attorney, disproportionately William Schultz, as either the author of the document or as the attorney who directed its preparation and claims them as either attorney-client communications or attorney work product.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal VA B 9/13

Chapter: 55.404
Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *17-18 (E.D. Va. Dec. 14, 2012)
("Most of the documents that ePlus identifies as missing author and recipient information identify either an author or a recipient; typically, an author only. Lawson's response is, quite simply, that 'failure to log author or recipient information is only a deficiency if the document on the log is the type that would actually have that information.' . . . . This proposition is plainly correct. Some documents clearly are, as Lawson argues, documents that 'by their nature as stand-alone documents . . . do not have a recipient.' . . . . Based on the Court's review of the privilege log, and its review of the underlying documents, the vast majority of the challenged documents fall into this category. A significant percentage of the documents are drafts of declarations, motions, contracts, briefs, and other similar documents. Other examples include evidently free-standing outlines, notes, and commentaries. The failure to list a recipient for these documents is not a deficiency in the privilege log and, more importantly, the narrative description for these entries would allow a party seeking to challenge the claim to privilege to determine that these were documents of this sort. At the hearing on this motion, the Court raised the possibility that some number of the documents at issue might not be privileged at all as a result of their being prepared for public consumption. . . . . The Court noted that such documents are not subject to attorney-client privilege, but that they might constitute protected work product. . . . . The Court's observation was based on the holding of the United States Court of Appeals in United States v. (Under Seal), 748 F.2d 871 (4th Cir. 1984).")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal VA

Chapter: 55.404
Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *16 (E.D. Va. Dec. 14, 2012)
("For all of the entries identified by ePlus for which there is neither an 'author' nor 'recipient' listed, the narrative description more than adequately identifies an attorney, disproportionately William Schultz, as either the author of the document or as the attorney who directed its preparation and claims them as either attorney-client communications or attorney work product.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal VA B 9/13

Chapter: 55.404
Case Name: High Point Sarl v. Sprint Nextel Corp., Civ. A. Case No. 09-2269-CM-DJM, 2012 U.S. Dist. LEXIS 154585, at *26 (D. Kan. Oct. 29, 2012)
(analyzing privilege issues in a patent case; "The Court has reviewed the document identified as entry 1091 and finds that it is a draft contract with some handwritten questions in the margins. Although Avaya [interested party] cannot identify the author of the draft agreement or handwritten questions in the margins, the nature and content of the questions written on the contract are such that they appear to be written as communications to or from an attorney reviewing the draft document.")

Case Date Jurisdiction State Cite Checked
2012-10-29 Federal KS B 1/14

Chapter: 55.404
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 252 (E.D. Va. 2012)
("Lawson did not fully comply with the October 19 Order or Rule 26. The log contains several deficiencies. First, many entries do not contain author and recipient information. Lawson admits that these entries are technically deficient. For the entries that do not contain this information, Lawson has waived the privilege.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA B 4/13

Chapter: 55.404
Case Name: Shenwick v. Twitter, Inc., Case No. 16-cv-05314-JST (SK), 2018 U.S. Dist. LEXIS 185714, at *7 (N.D. Cal. Oct. 30, 2018)
December 26, 2018 (PRIVILEGE POINT)

Court Needs More Information to Assess Draft Documents' Privilege Protection

The attorney-client privilege can protect lawyers' input into draft documents created by the lawyer or by the client – which of course evaporates when the client approves the finished document for disclosure outside the relationship. Not surprisingly, courts examine such lawyers' revisions to assess whether those lawyers were providing legal input rather than business, grammatical, stylistic suggestions, etc.

In Shenwick v. Twitter, Inc., the court noted that defendants withheld "several drafts of documents with comments provided with the redlined version." Case No. 16-cv-05314-JST (SK), 2018 U.S. Dist. LEXIS 185714, at *7 (N.D. Cal. Oct. 30, 2018). But because the court could not "determine the identity of the author of comments [in] these draft documents," it ordered defendants "to provide the Court with the identity of the individuals who provided the comments and link them to the comments in the draft documents submitted to the Court.'" Id.

The lesson from such decisions is self-evident. Lawyers should always memorialize their role in any drafting process, and stand ready to identify their suggested changes – including the nature of their legally-driven revisions.

Case Date Jurisdiction State Cite Checked
2008-10-30 Federal

Chapter: 55.404
Case Name: Board of Dirs. of Port Royal Condo. Unit Owners' Ass'n v. Crossland Sav. F.S.B., 19 Va. Cir. 8, 9 (Va. Cir. Ct. 1989)
(requiring "defendants to file the so-called 'Vaughn' index disclosing the dates, senders, and receivers and a summary description of the documents in question")

Case Date Jurisdiction State Cite Checked
1989-01-01 State VA

Chapter: 55.405
Case Name: Hopkins v. Board of County Commissioners of Wilson County, Kansas, Case No. 15-cv-2072-CM-TJJ, 2018 U.S. Dist. LEXIS 122356 (D. Kansas July 23, 2018)
("The identity of the person(s) for whom the document was prepared, as well as the identities of those to whom the document and copies of the document were directed, 'including an evidentiary showing based on competent evidence supporting any assertion that the document was created under the supervision of an attorney.'")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal KS

Chapter: 55.405
Case Name: United States v. Microsoft Corporation, Case No. C15-102RSM, 2017 U.S. Dist. LEXIS 69223 (W.D. Wash. May 5, 2017)
(holding that Microsoft could reasonably have anticipated litigation based on various factors; and ordering an in camera review of withheld documents; "Although some of these privilege log entries include no attorney as a recipient or author, all twelve identify the person whose legal advice is being discussed, as well as the subject matter of that legal advice.")

Case Date Jurisdiction State Cite Checked
2017-05-05 Federal WA

Chapter: 55.405
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 7965 (5th Cir. App. May 4, 2017)
("We agree with the EEOC that many of BDO's log entries lack sufficient detail to permit a determination as to whether the entire document or portions thereof are protected from disclosure. . . . For example, numerous log entries fail to identify a sender, recipient, date, or provide a substantive description of the subject matter."; "Some entries have only vague descriptions such as 'discrimination claim,' 'internal investigation,' or 'work environment claim.'")

Case Date Jurisdiction State Cite Checked
2017-05-04 Federal

Chapter: 55.405
Case Name: The William Powell Co. v. National Indemnity Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 55148 (S.D. Ohio April 11, 2017)
("OneBeacon is not entitled to withhold documents that were not exchanged between an attorney and his or her client or between client employees for the specific purpose of obtaining legal advice from counsel. . . . As the privilege log lists no recipient indicating with whom the author communicated, the Court cannot conclude that these email communications are protected by the attorney-client privilege."; "Thus, OneBeacon must either revise the privilege log to provide the missing recipient information and sufficient additional information to justify its withholding under the attorney-client privilege or produce those communications it has improperly withheld pursuant to an attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2017-04-11 Federal OH

Chapter: 55.405
Case Name: The William Powell Co. v. National Indemnity Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 55148 (S.D. Ohio April 11, 2017)
("OneBeacon must produce a legend identifying these and any other individuals who appear in OneBeacon's privilege log but who have not yet been identified.")

Case Date Jurisdiction State Cite Checked
2017-04-11 Federal OH

Chapter: 55.405
Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 44192 (D. Kansas March 24, 2017)
(in an opinion by Special Master, finding that a former Monsanto lawyer and business person did not resist discovery after being designated by defendant as a testifying expert; "[W]ith very few exceptions, Monsanto's privilege log lists the recipients of the various documents as simply 'Monsanto Company,' without delineating the individual recipients (or their corresponding professional titles or job positions). By this description, Monsanto has chosen to leave the undersigned in the dark as to whether the documents were shared only with key Monsanto managers needing legal advice, or whether they also were shared widely with lower-level employees. In other words, the undersigned have no way of determining whether the multitudes of persons who were sent particular documents were attorneys or business persons, and with respect to the latter category, whether they had a need to know the contents of those documents.")

Case Date Jurisdiction State Cite Checked
2017-03-24 Federal KS
Comment:

key case


Chapter: 55.405
Case Name: N.J. Manufacturers Ins. Co. v. Brady, Civ. A. No. 3:15-CV-02236, 2017 U.S. Dist. LEXIS 8268 (M.D. Pa. Jan. 20, 2017)
("In general, a privilege log typically must 'identify each document and the individuals who were parties to the communications, providing sufficient detail to permit a judgment as to whether the document is at least potentially protected from disclosure.' The party asserting the privilege has the burden of showing that the elements of the privilege are met.")

Case Date Jurisdiction State Cite Checked
2017-01-20 Federal PA

Chapter: 55.405
Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("Plaintiffs correctly note that, while Fluidmaster listed Lichtman as 'Legal Personnel in Communication' and described the documents at issue as having been 'prepared by counsel,' Fluidmaster did not put any information in the 'From,' 'To,' 'CC,' and 'BCC' columns of its privilege log when describing documents FMPRIV_00002-00005. Plaintiffs claim that this lack of information renders the privilege log deficient and impedes their ability to assess whether any privilege may have been waived. Technically, Plaintiffs are correct. Fluidmaster does not address this issue in its reply brief. Based on context, the Court speculates that Lichtman or someone working with her or under her direction prepared interview memos addressed to 'the File' or something similar after they spoke with Fluidmaster's employees. But that is conjecture. And, as the Court noted earlier, Fluidmaster's description of these documents on its privilege log is a bit vague and only minimally sufficient to invoke the attorney-client privilege in the first place. Therefore, on the present record, Plaintiffs are correct that Fluidmaster has not met its burden to show these documents are privileged against production. And, for example, if the reports were created as Fluidmaster says they were but were shared with someone not within the attorney-client privilege, then the privilege potentially would be waived and Plaintiffs would be entitled to see them. There is no way to know that from the entries on the log as it now stands."; "Therefore, Fluidmaster's Motion for Protective Order will be denied as to the Lichtman Reports unless Fluidmaster cures the deficiency with its privilege log by November 22, 2016, which is 14 days from the date of this Memorandum Opinion and Order.")

Case Date Jurisdiction State Cite Checked
2016-11-08 Federal IL

Chapter: 55.405
Case Name: Velsicol Chemical, LLC v. Westchester Fire Insurance Co., No. 15 C 2534, 2016 U.S. Dist. LEXIS 109736 (N.D. Ill. Aug. 18, 2016)
("[T]he 'undated document' lacks an author and a recipient. Thus, we are left to speculate as to who prepared this document, and more significantly, who received this document. There are certainly indications that this document may have been prepared by a Westchester (or predecessor) employee. Additionally, the document has a footer on each page reading, 'Privileged & Confidential Includes Attorney/Client Communication & Attorney Work Product Material.' However, as the withholding party, Westchester has the burden of establishing the existence of both the attorney-client and work-product privileges."; "Westchester has not met its burden. Not only are we left to wonder who prepared this document, and for what purpose, we have no sense of who received this document, and whether any efforts were made to maintain the privileged or confidential nature of the document; all of which, as noted above, Westchester has the burden of proving.")

Case Date Jurisdiction State Cite Checked
2016-08-18 Federal IL

Chapter: 55.405
Case Name: Chrimar Sys. Inc. v. Cisco Sys. Inc., Case No. 13-cv-01300-JSW (MEJ), 2016 U.S. Dist. LEXIS 54375, at *29 (N.D. Cal. Apr. 21, 2016)
("As to the second category, it is not clear these emails are privileged as they include unknown senders and recipients. While the privilege log states these emails memorialize legal advice from a named attorney, it does not identify the other recipients or senders named in the emails or in the 'To' or 'From' fields in emails included in the body of the emails Mr. Austermann [named inventor] sent to himself. . . . Furthermore, the inclusion of unidentified email recipients can 'destroy[] the confidential nature of the communication absent an explanation of who the[] recipients were.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2016-04-21 Federal CA B 8/16

Chapter: 55.405
Case Name: Chrimar Sys. Inc. v. Cisco Sys. Inc., Case No. 13-cv-01300-JSW (MEJ), 2016 U.S. Dist. LEXIS 54375, at *29 (N.D. Cal. Apr. 21, 2016)
("As to the second category, it is not clear these emails are privileged as they include unknown senders and recipients. While the privilege log states these emails memorialize legal advice from a named attorney, it does not identify the other recipients or senders named in the emails or in the 'To' or 'From' fields in emails included in the body of the emails Mr. Austermann [named inventor] sent to himself. . . . Furthermore, the inclusion of unidentified email recipients can 'destroy[] the confidential nature of the communication absent an explanation of who the[] recipients were.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2016-04-21 Federal CA B 8/16

Chapter: 55.405
Case Name: United States v. Louisiana, Civ. A. No. 11-470-JWD-RLB, 2015 U.S. Dist. LEXIS 100238 (M.D. La. July 31, 2015)
("The privilege log likewise fails to sufficiently explain the role of each identified recipient and sender with respect to communications with in-house counsel. While the Court is aware that DHH provided the job titles of the identified senders and recipients to the United States, the log still does not give enough information concerning the role of each individual within DHH, including information that would shed light on the reason for the communication. Many of the communications take place between in-house counsel and DHH employees. While the attorney client privilege can extend to communications between an organization's employees and its in-house counsel, the role of each person involved in that communication is crucial to determining applicability of the privilege.")

Case Date Jurisdiction State Cite Checked
2015-07-31 Federal LA

Chapter: 55.405
Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)
(finding the common interest doctrine inapplicable for a communications with certain members of the University's board, because the University's privilege log did not identify the board members)

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY

Chapter: 55.405
Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)
(finding the common interest doctrine inapplicable for a communications with certain members of the University's board, because the University's privilege log did not identify the board members; "The University's Privilege Log does not identify the roles of the individuals listed in the log. S ee generally Privilege Log. Despite an earlier ruling from Judge Peebles that the Privilege Log was insufficient . . . The University still has not identified which individuals listed in the Privilege Log are members of the Board of Trustees . . . . The University argues that although the Privilege Log did not indicate which recipients of specified communications were Board members, 'the University's privilege log clearly indicated that each recipient of the six communications are within the common-interest privilege shared by the University and its Board.'"; "The University's argument is unavailing, since the Privilege Log not only fails to identify members of the Board, but also fails to indicate the role of any person listed, or to specifically invoke the common-interest privilege. . . . Furthermore, with respect to members of the Board, the University never submitted evidence regarding '[o]ther required information, such as the relationship between . . . Individuals not normally within the privileged relationship.'. . . The Court therefore finds that Judge Peebles did not err in finding that the University had not met its burden to show that the common-interest privilege applies to documents shared with the Board.")\

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY

Chapter: 55.405
Case Name: Carolina Casualty Ins. Co. v. Oahu Air Conditioning Service, Inc., No. 2:13-cv-1378 WBS AC, 2015 U.S. Dist. LEXIS 40786 (E.D. Cal. March 30, 2015)
(analyzing a situation in which an insurance company settled a claim against its insured after a hazard waste spill, and then sues the three companies which are allegedly responsible for packing the hazard waste; "[T]he privilege log contains no 'key' to identify the senders and recipients of communications for which plaintiff claims privilege. While some of the names are known from other filings, some names are not familiar to the undersigned (although they may be familiar to PCS). An explicit statement of the identities of all senders and recipients of communications is essential for the court to make a determination of whether a protection or privilege exists. Also, it is not sufficient to identify a person simply as an attorney, attorneys' staff, investigator or investigator's staff, without indicating which entity that person is associated with and/or represents.")

Case Date Jurisdiction State Cite Checked
2015-03-30 Federal CA

Chapter: 55.405
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "The most glaring deficiency was 590 entries that contained no information other than the document date, the privilege asserted, and a description of the grounds for asserting the privilege. The entries lacked information identifying the parties to the communication or the attorney involved.")

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 55.405
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "When a log invokes the attorney-client privilege for items that have been shared with a third party, the party asserting the privilege must explain the role played by the third party that enables the privilege to be maintained. 'In most instances, a party waives the attorney-client privilege by communicating privileged information to a third party.')

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 55.405
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "If an entry on the Operative Logs discloses that the document was shared with a third party, then Mechel had the burden of explaining the role played by the third parties in order to maintain the privilege. Mechel was obligated to provide 'precise and certain reasons for preserving' the privilege as to these documents. . . . If the role of the third party was not explained on or before September 26, 2014, the date when Mechel provided the Operative Logs, then Mechel failed to assert a valid and timely claim of privilege. Privilege is waived, and the document will be produced.")

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 55.405
Case Name: Burkhead & Scott, Inc. v. City of Hopkinsville, Case No. 5:12-CV-00198-TBR, 2014 U.S. Dist. LEXIS 166374 (W.D. Ky. Dec. 1, 2014)
(holding that City and and a waste authority could enter into a common interest agreement; "[T]he inclusion of Mr. Pickerill, Mr. Bowling, or other unexplained individuals will waive protection unless an updated privilege log substantiates why they should not be considered third parties.")

Case Date Jurisdiction State Cite Checked
2014-12-01 Federal KY

Chapter: 55.405
Case Name: National Union Fire Ins. Co. of Pittsburgh, Pa. v. Donaldson Co., Inc., Civil No. 10-4948 (JRT/JJG), 2014 U.S. Dist. LEXIS 85621, at *27-28 (D. Minn. June 24, 2014)
(analyzing work product issues in connection with a first-party insurance bad faith claim; "Because Donaldson's privilege logs list both the source of the document and to whom the document was sent, National Union should be able to discern from the logs whether a document was shared with an individual outside the attorney-client privilege. Thus, to the extent that Rule 34(b)(2)€(i) applies to documents listed in a privilege log, Donaldson's privilege logs adequately organize the withheld documents. Furthermore, the Magistrate Judge did not clearly err in concluding generally that the amount of detail and descriptions in the privilege logs are sufficient.")

Case Date Jurisdiction State Cite Checked
2014-06-24 Federal MN

Chapter: 55.405
Case Name: Manufacturers Collection Co. LLC v. Precision Airmotive, LLC, No. 3:12-cv-853-L, 2014 U.S. Dist. LEXIS 77522, *13 (N.D. Tex. June 6, 2014)
(holding that a category privilege log was acceptable; "But the Court notes that AVCO's privilege log does not fully list the individuals who were authors or addressees or were copied on the documents. Rather, the log's categorical portion employs the 'including but not limited to' device in both the Author(s) and Recipient(s) fields.")

Case Date Jurisdiction State Cite Checked
2014-06-06 Federal TX

Chapter: 55.405
Case Name: SEC v. Yorkville Advisors, LLC, 12 Civ. 7728 (GBD) (HBP), 2014 U.S. Dist. LEXIS 72090 (S.D.N.Y. May 27, 2014)
(finding that the SEC waived its work product protection by producing an inadequate log late; "Likewise, the descriptions in the February 15 Privilege Log are inadequately detailed. The February 15 Privilege Log provides descriptions for fifty allegedly privileged documents, which are grouped into ten entries. The subject matter descriptions are similarly uninformative: 'YA Global,' 'Mark Angelo,' 'Yorkville Advisors' or 'Greenshift.' . . . Although the privilege log identifies the authors and recipients for certain categories of documents, i.e., emails and letters, it fails to specify the authors and recipients for a majority of the documents, namely, documents categorized as 'Reports' and 'Tip/Complaint/Referral.'")

Case Date Jurisdiction State Cite Checked
2014-05-27 Federal NY

Chapter: 55.405
Case Name: Khasin v. Hershey Co., Case No. 5:12-cv-01862-EJD-PSG, 2014 U.S. Dist. LEXIS 23886 (N.D. Cal. Feb. 21, 2014)
April 9, 2014 (PRIVILEGE POINT)

"Decision Highlights Courts' Differing Privilege Log Requirements"

Although Fed. R. Civ. P. 26 does not require privilege logs, most courts expect them – and many courts specifically require them. However, courts take widely varying approaches to log requirements.

In Khasin v. Hershey Co., Case No. 5:12-cv-01862-EJD-PSG, 2014 U.S. Dist. LEXIS 23886 (N.D. Cal. Feb. 21, 2014), plaintiff challenged defendant Hershey's privilege log. The court rejected Khasin's argument that Hershey's log improperly "failed to provide the organizational positions of senders and recipients." Id. at *12. The court noted that plaintiff's arguments "are based on an incorrect recitation of the requirements for a privilege log" – because plaintiff relied on the Second Circuit's "test for a sufficient privilege log [that] requires a greater degree of specificity than the one required by the Ninth Circuit." Id. at *12-13. The court pointedly noted that "the Ninth Circuit's test does not require a privilege log to provide the organizational positions of senders and recipients." Id. at *14.

As in so many other areas, litigants must check the pertinent court's specific approach to both the substance and the logistics of privilege claims.

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA
Comment:

key case


Chapter: 55.405
Case Name: Little Hocking Water Ass'n v. E.I. Du Pont De Nemours & Co., Civ. A. 2:09-cv-1081, 2013 U.S. Dist. LEXIS 22213, at *33 (S.D. Ohio Feb. 19, 2013)
(finding that the privilege log should include the following information: "'The identity of the person(s) for whom the document was prepared, as well as the identities of those to whom the document and copies of the document were directed, "including an evidentiary showing based on competent evidence supporting any assertion that the document was created under the supervision of an attorney."'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 55.405
Case Name: RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 218 (N.D. Ill. 2013)
("RBS fails to identify the author or recipient, if any, for a majority of the documents listed on its privilege log. This oversight significantly limits the Court's ability to find that documents are protected under the attorney-client privilege. Similarly, RBS's privilege log fails to include all the recipients of some e-mail chains. 'If listing only the recipients of the last e-mail in a chain fails to disclose everyone to whom an allegedly privilege communication has been sent, the listing cannot be adequate.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal IL B 4/14

Chapter: 55.405
Case Name: RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 219 (N.D. Ill. 2013)
("Without a complete list of who received certain documents, for example, there is no way to know if the communications were kept confidential, and the Court cannot find that the documents are protected by attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal IL B 4/14

Chapter: 55.405
Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *17-18 (E.D. Va. Dec. 14, 2012)
("Most of the documents that ePlus identifies as missing author and recipient information identify either an author or a recipient; typically, an author only. Lawson's response is, quite simply, that 'failure to log author or recipient information is only a deficiency if the document on the log is the type that would actually have that information.'. . . This proposition is plainly correct. . . . A significant percentage of the documents are drafts of declarations, motions, contracts, briefs, and other similar documents. Other examples include evidently free-standing outlines, notes, and commentaries. The failure to list a recipient for these documents is not a deficiency in the privilege log and, more importantly, the narrative description for these entries would allow a party seeking to challenge the claim to privilege to determine that these were documents of this sort.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal VA B 9/13

Chapter: 55.405
Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *16 (E.D. Va. Dec. 14, 2012)
("For all of the entries identified by ePlus for which there is neither an 'author' nor 'recipient' listed, the narrative description more than adequately identifies an attorney, disproportionately William Schultz, as either the author of the document or as the attorney who directed its preparation and claims them as either attorney-client communications or attorney work product.")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal VA B 9/13

Chapter: 55.405
Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *17-18 (E.D. Va. Dec. 14, 2012)
("Most of the documents that ePlus identifies as missing author and recipient information identify either an author or a recipient; typically, an author only. Lawson's response is, quite simply, that 'failure to log author or recipient information is only a deficiency if the document on the log is the type that would actually have that information.' . . . . This proposition is plainly correct. Some documents clearly are, as Lawson argues, documents that 'by their nature as stand-alone documents . . . do not have a recipient.' . . . . Based on the Court's review of the privilege log, and its review of the underlying documents, the vast majority of the challenged documents fall into this category. A significant percentage of the documents are drafts of declarations, motions, contracts, briefs, and other similar documents. Other examples include evidently free-standing outlines, notes, and commentaries. The failure to list a recipient for these documents is not a deficiency in the privilege log and, more importantly, the narrative description for these entries would allow a party seeking to challenge the claim to privilege to determine that these were documents of this sort. At the hearing on this motion, the Court raised the possibility that some number of the documents at issue might not be privileged at all as a result of their being prepared for public consumption. . . . . The Court noted that such documents are not subject to attorney-client privilege, but that they might constitute protected work product. . . . . The Court's observation was based on the holding of the United States Court of Appeals in United States v. (Under Seal), 748 F.2d 871 (4th Cir. 1984).")

Case Date Jurisdiction State Cite Checked
2012-12-14 Federal VA

Chapter: 55.405
Case Name: In re Capital One Bank Credit Card Interest Rate Litig., 286 F.R.D. 676, 681 (N.D. Ga. 2012)
("As in Bogle [Bogle v. McClure, 332 F.3d 1347 (11th Cir. 2003)], Capital One has presented no evidence as to whether the communications at issue were designated 'privileged' or 'confidential' or whether the recipients, where listed, understood the communications to be confidential. Where there are no recipients listed, the court has no way of knowing whether the communications remained confidential and were distributed only to those employees who needed to know its contents and/or were authorized to act on behalf of Capital One with respect to the subject matter of the communications. . . . With regard to these documents failing to list a recipient, Plaintiffs' motion to compel is due to be granted. Where recipients are listed but non-lawyers are included on both sides of the communication, the court again does not possess the information required to ascertain whether the employees included needed to know the contents of the communication and/or were authorized to act on the information for the company. With regard to these documents, that do have recipients listed, Capital One should come forward with additional information so that Plaintiffs, and, if necessary, the court, can better evaluate its claims of attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal GA B 5/13

Chapter: 55.405
Case Name: Rhoades Indus., Inc. v. Bldg. Materials Corp. of Am., 254 F.R.D. 238, 241 & n.5 (E.D. Pa. 2008)
("A situation may arise where a number of email messages, by themselves not privileged, but eventually sent to an attorney for the purpose of securing legal advice, become privileged. If they are not produced, they must be logged individually in order to claim the privilege, but they do not have to be detailed in the log entry describing the email message sent to the attorney. An email string may be analogous to a meeting that takes place in a conference room between attorney and client for the purpose of seeking legal advice. The facts discussed at the meeting must be disclosed in discovery, but the communications that take place at the meeting are privileged. As a result of the meeting, if the client prepares a letter to the attorney summarizing those communications, both the discussions at the meeting and the letter itself are clearly privileged. In the world of electronic communications, a series of email messages, among people employed by the client but working in different locations, can replace the meeting and subsequent letter. Some of the communications may not include copies to the attorney, but after the exchange of email messages among the client's employees, all contained within one email string, the last and most recent email, attaching all the prior emails, is then sent to the attorney with a request for legal advice based on the underlying email messages. If the purpose of the email string was to gather facts and communicate those facts to the attorney for legal advice, then a good argument exists that the email communications served the functional equivalent of a face-to-face meeting, and although the facts contained in the emails are discoverable, all of the messages, not only the compilation of messages sent to the attorney, are privileged. If that is the case, all of the separate email messages must be disclosed under Rule 26(b)(5), which is usually done by a privilege log. However, the client's log need not disclose that all of these emails were forwarded to the attorney.")

Case Date Jurisdiction State Cite Checked
2008-01-01 Federal PA B 8/13

Chapter: 55.405
Case Name: The Christian Coalition Int'l v. United States, No. 2:01CV377, 2002 U.S. Dist. LEXIS 11427, *8-9 (E.D. Va. May 31, 2002)
("The government contends that the privilege log issued by the plaintiff for asserting the attorney/client privilege is inadequate because it does not identify various individuals in the log. At the hearing, the Court directed the plaintiff to certify under oath if the individuals named in the privilege log were an officer/employee of The Christian Coalition International or an individual protected by attorney/client privilege. On February 14, 2002, a certification under oath was received and filed by the Clerk from Alan P. Dye, Esq., counsel for The Christian Coalition International . . . This document certifies that the individuals identified in the privilege log were officers or employees or otherwise covered by the attorney/client privilege except for six documents identified in the certification for which the plaintiff withdrew the privilege. The Court is satisfied that the privilege log, as supplemented by the certification under oath, is sufficient to withstand the government's motion to compel.")

Case Date Jurisdiction State Cite Checked
2002-05-31 Federal VA

Chapter: 55.405
Case Name: Board of Dirs. of Port Royal Condo. Unit Owners' Ass'n v. Crossland Sav. F.S.B., 19 Va. Cir. 8, 9 (Va. Cir. Ct. 1989)
(requiring "defendants to file the so-called 'Vaughn' index disclosing the dates, senders, and receivers and a summary description of the documents in question")

Case Date Jurisdiction State Cite Checked
1989-01-01 State VA

Chapter: 55.406
Case Name: Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018)
November 21, 2018 (PRIVILEGE POINT)

Court Demands That Defendant Identify Those With Access to Privileged Documents

In 2015, the court handling a malicious prosecution case against the Town of Islip held that the Town had waived privilege protection for documents that "were apparently accessible by all Town employees, " even those without a need to know, and that might also have been accessed by members of the public "in days past." Norton v. Town of Islip, No. CV 04-3079 (PKC) (SIL), 2015 U.S. Dist. LEXIS 125114, at *11, *14 (E.D.N.Y. Sept. 18, 2015).

The parties' privilege fights have continued, and plaintiff recently challenged the Town's declaration that "'[t]here is no reason to believe' that the privileged documents were accessed by anyone other than those individuals and offices to whom they were addressed." Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018). The court again addressed the access issue. After explaining that it was "unable to credit the Town Defendants' conclusion about access of the subject documents," the court ordered the Town to provide "affidavits from an individual or individuals with knowledge setting forth where each document was kept, including all individuals who had access to the documents and when that access was provided." Id. at *25, *28. And the court then doubled down, emphasizing that "[f]or the sake of clarity, the Court is directing the Town Defendants to explain who had access, not just who actually accessed the documents at issue and what was done to maintain confidentiality." Id. at *28.

It is difficult to imagine any institutional client (governmental or corporate) being able to comply with such a remarkable requirement.

Case Date Jurisdiction State Cite Checked
2018-10-16 Federal

Chapter: 55.406
Case Name: Norton v. Town of Islip, County fo Suffolk, CV 04-3079 (PKC) (SIL), 2017 U.S. Dist. LEXIS 33977 (E.D.N.Y. March 9, 2017)
(holding that categorical privilege logs are sometimes acceptable, but not in the circumstances before the court; "Defendants are directed to promulgate a revised privilege log, which, considering the recent waiver, must include all individuals who had access to the documents and when that access was provided. . . . the Court directs Defendants to identify where each of the documents were kept and who had access to that location. For the sake of clarity, the revised privilege log must outline for each document and handwritten note: (1) the date of creation; (2) the identity of each person who created and received the document, including those copied on it, and the title of each individual; (3) a more elaborate description, without revealing the substance of the communications, as to the basis of the privilege(s); (4) the subject matter of the document; (5) the privilege(s) being asserted; (6) where the document was kept; and (7) each person who has been given access to each of the document's locations and the date that access was provided.")

Case Date Jurisdiction State Cite Checked
2017-03-09 Federal NY
Comment:

key case


Chapter: 55.407
Case Name: Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018)
November 21, 2018 (PRIVILEGE POINT)

Court Demands That Defendant Identify Those With Access to Privileged Documents

In 2015, the court handling a malicious prosecution case against the Town of Islip held that the Town had waived privilege protection for documents that "were apparently accessible by all Town employees, " even those without a need to know, and that might also have been accessed by members of the public "in days past." Norton v. Town of Islip, No. CV 04-3079 (PKC) (SIL), 2015 U.S. Dist. LEXIS 125114, at *11, *14 (E.D.N.Y. Sept. 18, 2015).

The parties' privilege fights have continued, and plaintiff recently challenged the Town's declaration that "'[t]here is no reason to believe' that the privileged documents were accessed by anyone other than those individuals and offices to whom they were addressed." Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018). The court again addressed the access issue. After explaining that it was "unable to credit the Town Defendants' conclusion about access of the subject documents," the court ordered the Town to provide "affidavits from an individual or individuals with knowledge setting forth where each document was kept, including all individuals who had access to the documents and when that access was provided." Id. at *25, *28. And the court then doubled down, emphasizing that "[f]or the sake of clarity, the Court is directing the Town Defendants to explain who had access, not just who actually accessed the documents at issue and what was done to maintain confidentiality." Id. at *28.

It is difficult to imagine any institutional client (governmental or corporate) being able to comply with such a remarkable requirement.

Case Date Jurisdiction State Cite Checked
2018-10-16 Federal

Chapter: 55.407
Case Name: Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018)
November 21, 2018 (PRIVILEGE POINT)

Court Demands That Defendant Identify Those With Access to Privileged Documents

In 2015, the court handling a malicious prosecution case against the Town of Islip held that the Town had waived privilege protection for documents that "were apparently accessible by all Town employees, " even those without a need to know, and that might also have been accessed by members of the public "in days past." Norton v. Town of Islip, No. CV 04-3079 (PKC) (SIL), 2015 U.S. Dist. LEXIS 125114, at *11, *14 (E.D.N.Y. Sept. 18, 2015).

The parties' privilege fights have continued, and plaintiff recently challenged the Town's declaration that "'[t]here is no reason to believe' that the privileged documents were accessed by anyone other than those individuals and offices to whom they were addressed." Norton v. Town of Islip, CV 04-3079 (PKC) (SIL), 2018 U.S. Dist. LEXIS 177811, at *24 (E.D.N.Y. Oct. 16, 2018). The court again addressed the access issue. After explaining that it was "unable to credit the Town Defendants' conclusion about access of the subject documents," the court ordered the Town to provide "affidavits from an individual or individuals with knowledge setting forth where each document was kept, including all individuals who had access to the documents and when that access was provided." Id. at *25, *28. And the court then doubled down, emphasizing that "[f]or the sake of clarity, the Court is directing the Town Defendants to explain who had access, not just who actually accessed the documents at issue and what was done to maintain confidentiality." Id. at *28.

It is difficult to imagine any institutional client (governmental or corporate) being able to comply with such a remarkable requirement.

Case Date Jurisdiction State Cite Checked
2018-10-16 Federal

Chapter: 55.407
Case Name: Wallis v. Centennial Ins. Co., No. 2:08-cv-2558 WBS AC, 2013 U.S. Dist. LEXIS 14181, at *25-26 (D. Cal. Jan. 31, 2013)
("A party meets its burden of demonstrating the applicability of the attorney-client privilege by submitting a privilege log that identifies as to each document withheld: '(a) the attorney and client involved, (b) the nature of the document, (c) all persons or entities shown on the document to have received or sent the document, (d) all persons or entities known to have been furnished the document or informed of its substance, and (e) the date the document was generated, prepared, or dated.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-01-31 Federal CA B 2/14

Chapter: 55.408
Case Name: Sidibe v. Health, Case No. 12-cv-04854-LB, 2018 U.S. Dist. LEXIS 20350 (N.D. Cal. Feb. 7, 2018)
("The court finds that Sutter has not met its burden of establishing that this document is privileged. Sutter originally claimed work-product protection for this document, but Sutter's revised submission to the court now asserts only attorney-client privilege. (Sutter's submission did not include the information the court required for the documents being submitted in camera for which Sutter was claiming work-product protection, such as the identity of the actual or reasonably-anticipated litigation for which the document was created, so the court assumes that Sutter is withdrawing its claim of work-product protection.")

Case Date Jurisdiction State Cite Checked
2018-02-07 Federal CA

Chapter: 55.408
Case Name: In re Abilify Aripiprazole Prods. Liab. Litig., Case No. 3:16-md-2734, 2017 U.S. Dist. LEXIS 213493 (N.D. Fla. Dec. 29, 2017)
("Plaintiffs also argue that the privilege logs are deficient because Defendants did not identify specific litigation in order to invoke the work product protection. This argument fails to take into account that the Court expressly directed Defendants to provide the Court (in camera) with a detailed description and chronology of potential, pending and threatened legal proceedings for which Defendants asserted claims of work product protection. The Defendants submitted declarations providing the Court with the requested information, which the Court has utilized in analyzing whether Defendants have asserted the work product protection validly with regard to documents on the privilege logs.")

Case Date Jurisdiction State Cite Checked
2017-12-29 Federal FL
Comment:

key case


Chapter: 55.408
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 7965 (5th Cir. App. May 4, 2017)
("We agree with the EEOC that many of BDO's log entries lack sufficient detail to permit a determination as to whether the entire document or portions thereof are protected from disclosure. . . . For example, numerous log entries fail to identify a sender, recipient, date, or provide a substantive description of the subject matter."; "Some entries have only vague descriptions such as 'discrimination claim,' 'internal investigation,' or 'work environment claim.'")

Case Date Jurisdiction State Cite Checked
2017-05-04 Federal OR

Chapter: 55.408
Case Name: Brinker v. Normandin's, Case No. 14-cv-03007-EJD (HRL), 2016 U.S. Dist. LEXIS 8411, at *3-4 (N.D. Cal. Jan. 22, 2016)
("Every single document designated as privileged was also labeled as work product, seemingly as a matter of course. Normandin recites legal standards . . . but makes no factual argument to support most of these work-product designations. The privilege log is too vague to make up for the deficiency in Normandin's portion of the DDJR [discovery dispute joint report]. For instance, Mark Normandin sent Paul Normandin an email about 'Gonzales' on February 4, 2015 -- Normandin asks the court to conclude from solely those facts that the email is protected work product prepared in anticipation of litigation or for trial. The court is not persuaded by the low degree of detail Normandin provides for most of its work-product designations.")

Case Date Jurisdiction State Cite Checked
2016-01-22 Federal CA B 7/16

Chapter: 55.408
Case Name: Banks v. St. Francis Health Center, Inc., Case No. 15-cv-2602-JAR-TJJ, 2015 U.S. Dist. LEXIS 157752 (D. Kansas Nov. 23, 2015)
("With regard to Plaintiff's argument that Defendant's log fails to show that litigation was imminent, the Court agrees with Defendant that this is not an element of attorney-client privilege, but rather is required to establish the documents are protected work product.")

Case Date Jurisdiction State Cite Checked
2015-11-23 Federal KS

Chapter: 55.408
Case Name: Pacific Management Group v. Commissioner of Internal Revenue, Dkt. Nos. 6411-08 and consolidated cases, 2015 Tax Ct. Memo LEXIS 104, 109 T.C.M. (CCH) 1505 (T.C. May 26, 2015)
("[W]here the privilege log supplies no information whatever about the subject of the allegedly privileged communications, the log is plainly inadequate. The log Mr. Dunning supplied does not state the subject of any email; it does not describe the contents of any email; it does not indicate whether documents were attached to any email or what the contents of such documents were; it does not describe the purpose for which any email or attached document was created; and it includes no facts indicating that any particular communication was intended to be confidential. It thus fails to establish each element of the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2015-05-26 Federal Other

Chapter: 55.408
Case Name: Johnson v. Gross, No. 14-12248 Non-Argument Calendar, 2015 U.S. App. LEXIS 7315 (11th Cir. App. May 4, 2015)
("[H]e [Lawyer] did not meet his burden of establishing that the work-product doctrine applies to the subpoenaed documents. Contrary to Rule 26(b)(5)(A)'s requirements, Mr. Froelich did not describe the nature of the undisclosed communications in a manner that allowed the plaintiffs and the distrct court to evaluate his claimed privilege. Nor did he give a reason why the work-product doctrine should apply to all of the communications. Instead, when opposing counsel noted that Mr. Froelich had not provided a privilege log or attempted to parse out the communications that would be privileged, Mr. Froelich replied, 'I don't parse it out. That's not my job[.]'. . . 'I haven't even received a privilege log saying that these are all privileged[.]') Mr. Froelich was incorrect on the law, and he failed to show that the subpoenaed communications were privileged.")

Case Date Jurisdiction State Cite Checked
2015-05-04 Federal

Chapter: 55.408
Case Name: McNabb v. City of Overland Park, Case No. 12-CV-2331 CM/TJJ, 2014 U.S. Dist. LEXIS 37312, at *25 (D. Kan. Mar. 21, 2014)
("Work product requires that the document 'be prepared in anticipation of litigation or for trial by or for another party or its representative.' Defendant's privilege log does not even make the mere assertion that any of the documents it withheld as work product were prepared in anticipation of litigation or for trial.")

Case Date Jurisdiction State Cite Checked
2014-03-21 Federal KS B 8/14

Chapter: 55.408
Case Name: Lowe's Home Ctrs., Inc. v. THF Clarksburg Dev. Two, L.L.C., Civ. A. No. 1:12 cv 72, 2013 U.S. Dist. LEXIS 96978, at *6 (N.D. W. Va. July 11, 2013)
(ordering defendant to supplement an incomplete log within seven days; "[A]lthough the privilege log purports to provide a 'Subject,' these appear more like the subject line of an email than 'the general subject matter of the document.'")

Case Date Jurisdiction State Cite Checked
2013-07-11 Federal WV B 4/14

Chapter: 55.408
Case Name: Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *5, *5-7, *7-8 (E.D. Va. July 12, 2012)
("The defendants argue that they (Scan-Optics, LLC and Scan-Optics, Ltd.) and Patriarch are 'sufficiently interrelated' such that they can be 'treated as one entity' for the purposes of attorney-client privilege. . . . Brainware Response at 8. Brainware points out that Patriarch is not a party to the litigation, was not a party to the contract at issue in the case, is not a parent of either defendant, and has no ownership interest in either defendant. . . . And, those facts are not in dispute, at least at this stage of the case."; "The defendants have not provided a description of Patriarch in their privilege log summary. They have not identified the roles, offices, and companies of each person named in the privilege log. Thus, the reader cannot decipher which persons work for Patriarch, which work for Scan-Optics, Ltd., which work for Scan-Optics, LLC, and which do not work for any of these entities. The defendants' response briefs do not remedy those defects. In those briefs, the defendants provide the following description of Patriarch: 'Patriarch is the collateral manager of investment funds that own controlling equity stakes in approximately 75 "portfolio companies," including Scan-Optics, LLC (footnote omitted) which, in turn, is the sole shareholder of Scan-Optics, Ltd. [] The funds have no employees and can only act through Patriarch as collateral manager.' . . . . . This terse description is wholly inadequate. It certainly does not show that there is a relationship between Patriarch and either defendant of any sort that would give rise to any privilege. What do the defendants mean when they assert that Patriarch is a collateral manager of investment funds, and that the funds can 'act only through' Patriarch? What is the organizational structure of each of these three entities? How do they work together and how often? And, who works for whom? None of these is explained."; "Here, not only do the descriptions in the privilege log fail to identify and explain the relationship Patriarch has with each defendant, but the descriptions failed to differentiate between companies, or describe the role of the persons to whom each communication was sent. Nor did either defendant establish the relational predicate for a privilege between it and Patriarch." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2012-07-12 Federal VA

Chapter: 55.408
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 252 (E.D. Va. 2012)
("Second, many entries do not identify an attorney in the recipient or author field. Lawson did not properly assert attorney client privilege with respect to these entries. Because the entries lack an attorney's name in the recipient and author fields, it is clear that these communications were made by or to an attorney. See Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998) (noting that attorney-client privilege protects only communications made to or from attorneys). However, those entries that are cited by ePlus as having this deficiency, assert both work product and attorney client privilege. See, e.g., Mem. Supp. Motion to Compel, Exhibit C, Privilege Log 4, Entry Nos. 46, 48, 98, 153-70, 361, 364-65, 368-69, 416, 425, 426, 468-71, 2399-419. And, in the narrative description for each alleged offending entry, Lawson claims that the documents were prepared by a specific attorney in anticipation of litigation. Thus, with respect to these entries, the privilege is not waived.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 55.408
Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376, 382 (W.D. Va. 2012)
("In this case, the Privilege Log entries for the documents withheld by EQT Production do not support the application of the work-product doctrine. Instead, these entries show that many of these communications were not created in anticipation of litigation, but rather were created in an effort to respond to specific inquiries by DMME [Virginia Department of Mines, Minerals and Energy], the Board [Virginia Gas and Oil Board] or Reporter Gilbert [Bristol Herald Courier newspaper reporter Daniel Gilbert]. See Nos. 182, 184-197, 239-241, 253-262, 264.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 55.408
Case Name: Adair v. EQT Prod. Co., 285 F.R.D. 376, 381 (W.D. Va. 2012)
("None of these entries makes any reference to seeking or providing legal advice. Furthermore, it is important to note that the Privilege Log does include entries that clearly state that the documents relate to the giving or receiving of legal advice.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA B 4/13

Chapter: 55.408
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 273 (E.D. Va. 2004)
("Many of the entries on Rambus' log simply lack the information necessary to determine whether a privilege applies. For instance, respecting the work product doctrine, many entries on Rambus' privilege log do not state whether an attorney was involved in the creation of the document or whether the document was created in anticipation of litigation. Moreover, as to those entries asserting the attorney client privilege, many do not even state whether the communication involved legal advice. United States v. Bollin, 264 F.3d 391, 412 (4th Cir. 2001).")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA

Chapter: 55.409
Case Name: Bartech Systems Int'l v. Mobile Simple Solutions, Inc., Case No. 2:15-cv-02422-MMD-NJK, 2018 U.S. Dist. LEXIS 22296 (D. Nev. Feb. 12, 2018)
("The Court finds Defendant's privilege log inadequate. . . . First, the Court's order at Docket No. 415 explicitly required that the joint statement be complete in itself. As one example of a failure to comply with the Court's order, Defendant claims the privilege as to communications with counsel from Snell but fails to identify which names on the privilege log are even associated with Snell. Without a sufficient privilege log, the Court cannot decide whether or not the attorney-client privilege exists as to communications with Snell. Second, although Defendant cites case law that extends the attorney-client privilege to a third party agent or consultant, it does not provide any factual support that such an agency relationship existed between itself, Mr. Manardo, and any of the non-GEM defendants. The Court therefore finds that Defendant fails to provide any meaningfully-developed argument to prove it has standing to assert the attorney-client privilege as to any communications with Snell."; "Accordingly, the Court does not reach the merits of Defendant's objection on grounds of the attorney-client privilege as to any communications that involve Snell, and Plaintiff's request is GRANTED as to these communications.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal NV

Chapter: 55.409
Case Name: Sidibe v. Health, Case No. 12-cv-04854-LB, 2018 U.S. Dist. LEXIS 20350 (N.D. Cal. Feb. 7, 2018)
("The court finds that Sutter has not met its burden of establishing that this document is privileged. Sutter originally claimed work-product protection for this document, but Sutter's revised submission to the court now asserts only attorney-client privilege. (Sutter's submission did not include the information the court required for the documents being submitted in camera for which Sutter was claiming work-product protection, such as the identity of the actual or reasonably-anticipated litigation for which the document was created, so the court assumes that Sutter is withdrawing its claim of work-product protection.")

Case Date Jurisdiction State Cite Checked
2018-02-07 Federal CA

Chapter: 55.409
Case Name: Schmalz v. Village of North Riverside, No. 13 C 8012, 2018 U.S. Dist. LEXIS 19623 (N.D. Ill. Feb. 7, 2018)
("None of the entries in the privilege log specify the name of the attorney involved in the underlying communication, the nature of the confidential attorney-client communication at issue, or the nature of the legal advice at issue. Document Nos. 374, 1046, 1048 and 1225 do not even contain a subject matter, title or description.")

Case Date Jurisdiction State Cite Checked
2018-02-07 Federal IL

Chapter: 55.409
Case Name: In re Abilify Aripiprazole Prods. Liab. Litig., Case No. 3:16-md-2734, 2017 U.S. Dist. LEXIS 213493 (N.D. Fla. Dec. 29, 2017)
("[T]he privilege logs contain the information required in the Court's February 7, 2017, Order for Preservation and Production of Documents, Electronically Stored Information, and Privileged Documents. (The 'ESI Order') . . . The Court's ESI Order required Defendants to include on their logs: the nature of the privilege; the factual basis for the privilege; the date of the document; the name of the author and all recipients and whether any person identified is an attorney or an employee of the Defendants' legal department; a description of the general subject matter contained in the document and the type of document sufficient to allow Plaintiffs to assess the claimed Privilege and to allow the Court to rule on the claimed Privilege; the location of the document; and the custodian.")

Case Date Jurisdiction State Cite Checked
2017-12-29 Federal FL

Chapter: 55.409
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 7965 (5th Cir. App. May 4, 2017)
("We agree with the EEOC that many of BDO's log entries lack sufficient detail to permit a determination as to whether the entire document or portions thereof are protected from disclosure. . . . For example, numerous log entries fail to identify a sender, recipient, date, or provide a substantive description of the subject matter."; "Some entries have only vague descriptions such as 'discrimination claim,' 'internal investigation,' or 'work environment claim.'")

Case Date Jurisdiction State Cite Checked
2017-05-04 Federal

Chapter: 55.409
Case Name: Meade v. General Motors, LLC, Civ. A. No. 1:16-cv-00991-AT, 2017 U.S. Dist. LEXIS 61455 (N.D. Ga. April 21, 2017)
(finding that defendant's deficient log waived privilege protection; "The Court explained that while communication between counsel and an HR manager about a topic is potentially privileged, the topic itself is not necessarily protected from discovery, and thus must be described in the privilege log. In response to a question from Defendant's litigation counsel, David Ritter, whether the subject matter line of an email would be an adequate descriptor, the Court explained that a subject line such as 'revised case summary' would not be sufficient to describe the nature and general content of a document for purposes of determining the applicability of the privilege. The Court indicated that a proper log entry could provide the file name of an attachment and/or a subject line that states, for example, 'GM Awareline Report' followed by an entry with a brief description of what the document/communication is.")

Case Date Jurisdiction State Cite Checked
2017-04-21 Federal GA

Chapter: 55.409
Case Name: Norton v. Town of Islip, County fo Suffolk, CV 04-3079 (PKC) (SIL), 2017 U.S. Dist. LEXIS 33977 (E.D.N.Y. March 9, 2017)
(holding that categorical privilege logs are sometimes acceptable, but not in the circumstances before the court; "Defendants are directed to promulgate a revised privilege log, which, considering the recent waiver, must include all individuals who had access to the documents and when that access was provided. . . . the Court directs Defendants to identify where each of the documents were kept and who had access to that location. For the sake of clarity, the revised privilege log must outline for each document and handwritten note: (1) the date of creation; (2) the identity of each person who created and received the document, including those copied on it, and the title of each individual; (3) a more elaborate description, without revealing the substance of the communications, as to the basis of the privilege(s); (4) the subject matter of the document; (5) the privilege(s) being asserted; (6) where the document was kept; and (7) each person who has been given access to each of the document's locations and the date that access was provided.")

Case Date Jurisdiction State Cite Checked
2017-03-09 Federal NY
Comment:

key case


Chapter: 55.409
Case Name: NLRB v. NPC International, Inc., 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017)
("Turning now to a review of the log submitted by NPC, the Court agrees that it is insufficient. The descriptions provided by Respondent leave much to be desired. The privilege log lists 107 documents, all of which are emails. . . . The log lists the date the emails were sent, the author/sender and recipient, the bates stamp, the subject, and the privilege or protection claimed. . . . Some examples of the descriptions provided in the 'subject' category are 'Dr.'s notes,' 'Penley,' 'meeting on voids,' 'NPC,' 'subpoena,' 'employee history,' 'release,' and 'workman's comp.'. . . This is only a sample of the 'subjects' provided, but the remaining descriptions are equally thin. These explanations are wholly inadequate to enable the Court to determine whether the items were properly withheld.")

Case Date Jurisdiction State Cite Checked
2017-02-16 Federal TN

Chapter: 55.409
Case Name:


Case Date Jurisdiction State Cite Checked
2016-11-08 Federal IL

Chapter: 55.409
Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("It is not clear whether the documents were prepared by counsel or simply forwarded by counsel to Fluidmaster and, while that ultimately might not be dispositive, it is relevant information. The subject matter of the documents likewise is vague and unclear. In addition, the description of the FMPRIV_00501-00506 documents reference a presentation 'prepared by Joanne Lichtman' but it seems that the document that Fluidmaster claims is privileged is not the presentation itself but, rather, spreadsheets and charts related to that presentation."; "Because these entries do not contain the information necessary to determine who was involved in the relevant communications, the Court cannot properly assess whether they constitute communications between Fluidmaster and an attorney in an attorney-client relationship with it.")

Case Date Jurisdiction State Cite Checked
2016-11-08 Federal IL

Chapter: 55.409
Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)
(finding the common interest doctrine inapplicable for a communications with certain members of the University's board, because the University's privilege log did not identify the board members; "The University's Privilege Log does not identify the roles of the individuals listed in the log. S ee generally Privilege Log. Despite an earlier ruling from Judge Peebles that the Privilege Log was insufficient . . . The University still has not identified which individuals listed in the Privilege Log are members of the Board of Trustees . . . . The University argues that although the Privilege Log did not indicate which recipients of specified communications were Board members, 'the University's privilege log clearly indicated that each recipient of the six communications are within the common-interest privilege shared by the University and its Board.'"; "The University's argument is unavailing, since the Privilege Log not only fails to identify members of the Board, but also fails to indicate the role of any person listed, or to specifically invoke the common-interest privilege. . . . Furthermore, with respect to members of the Board, the University never submitted evidence regarding '[o]ther required information, such as the relationship between . . . Individuals not normally within the privileged relationship.'. . . The Court therefore finds that Judge Peebles did not err in finding that the University had not met its burden to show that the common-interest privilege applies to documents shared with the Board.")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY

Chapter: 55.409
Case Name: Carolina Casualty Ins. Co. v. Oahu Air Conditioning Service, Inc., No. 2:13-cv-1378 WBS AC, 2015 U.S. Dist. LEXIS 40786 (E.D. Cal. March 30, 2015)
(analyzing a situation in which an insurance company settled a claim against its insured after a hazard waste spill, and then sues the three companies which are allegedly responsible for packing the hazard waste; "[P]laintiff has not numbered any of the more than 700 documents in its privilege log. While this may not be a legal issue, it seriously impedes the court's ability to determine which document is which, as it appears that some of them may have the same date, sender, recipient, description and privilege claimed. Plaintiff is reminded that if PCS renews its motion to compel, plaintiff bears the burden of establishing the protection or privilege as to each and every document on its privilege list.")

Case Date Jurisdiction State Cite Checked
2015-03-30 Federal CA

Chapter: 55.409
Case Name: Carolina Casualty Ins. Co. v. Oahu Air Conditioning Service, Inc., No. 2:13-cv-1378 WBS AC, 2015 U.S. Dist. LEXIS 40786 (E.D. Cal. March 30, 2015)
(analyzing a situation in which an insurance company settled a claim against its insured after a hazard waste spill, and then sues the three companies which are allegedly responsible for packing the hazard waste; "[T]he privilege log contains no 'key' to identify the senders and recipients of communications for which plaintiff claims privilege. While some of the names are known from other filings, some names are not familiar to the undersigned (although they may be familiar to PCS). An explicit statement of the identities of all senders and recipients of communications is essential for the court to make a determination of whether a protection or privilege exists. Also, it is not sufficient to identify a person simply as an attorney, attorneys' staff, investigator or investigator's staff, without indicating which entity that person is associated with and/or represents.")

Case Date Jurisdiction State Cite Checked
2015-03-30 Federal CA

Chapter: 55.409
Case Name: United States v. von Biberstein, No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139 (E.D.N.C. March 25, 2015)
(holding that defendant's insufficient log and repeated failures to adequately describe withheld documents waived the privilege; ordering the withheld documents produced; "In the log, respondent claims two separate documents are privileged -- a purchase and sale agreement and an operating agreement. The privilege log, however, is of little help to the Court. It lacks the dates of the documents that are allegedly privileged. More problematically, it merely restates the boilerplate language directly from the Hawkins [Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998)] test for privilege without giving the Court any way to ascertain whether, in fact, the documents are privileged. For example, an 'agreement' typically contemplates the existence of a third party, which would destroy attorney-client privilege. Here, however, respondent argues not that the agreements themselves are privileged, but that information contained in the documents was provided for securing legal advice. Respondent does not explain, for example, what type of legal advice he was retained to provide or who the parties to the agreement were. Without further context, the Court cannot determine whether the documents themselves are privileged and is constrained to construe the privilege narrowly.")

Case Date Jurisdiction State Cite Checked
2015-03-25 Federal NC

Chapter: 55.409
Case Name: Neelon v. Blair Krueger, Civ. A. No. 12-cv-11198-IT, 2015 U.S. Dist. LEXIS 29146 (D. Mass. March 10, 2015)
(finding that a category log was not adequate in the circumstances of the case; "Although a categorical log may be allowable if thorough review is still possible, the log Plaintiff produced here was inadequate."; "Plaintiff's log -- which grouped documents by relationship or overall transaction -- does not contain such detail, making it difficult for Defendants or the court to test the applicability of the asserted privilege as to each document sought to be withheld.")

Case Date Jurisdiction State Cite Checked
2015-03-10 Federal MA

Chapter: 55.409
Case Name: Neelon v. Blair Krueger, Civ. A. No. 12-cv-11198-IT, 2015 U.S. Dist. LEXIS 29146 (D. Mass. March 10, 2015)
(finding that a category log was not adequate in the circumstances of the case; "[A]lthough Plaintiff argues that any additional specificity would reveal the content of privileged documents, the court disagrees. By way of example, Plaintiff could have provided more precise dates, an identification of the nature of the communications, the approximate number of documents involved, the name of all individuals receiving or sending particular communications, and the general subject matter of the withheld documents.")

Case Date Jurisdiction State Cite Checked
2015-03-10 Federal MA

Chapter: 55.409
Case Name: Indianapolis Airport Authority v. Travelers Property Casualty Co. of Am., No. 1:13-cv-01316-JMS-TAB, 2014 U.S. Dist. LEXIS 176607 (S.D. Ind. Dec. 23, 2014)
(analyzing protections in a first party insurance case; "There is not enough information to determine whether Sacks and Perry were acting in their professional capacities and whether coverage issues are privileged.")

Case Date Jurisdiction State Cite Checked
2014-12-23 Federal IN

Chapter: 55.409
Case Name: Neelon v. Krueger; Civ. A. No. 12-11198-IT, 2014 U.S. Dist. LEXIS 175792 (D. Mass. Dec. 19, 2014)
("Section C is entitled 'Communications with Paralegal, Translator, Representative Agent, and Employee Ariunaa Tsogt,' and Section E is entitled 'Communications Between Plaintiff, Through Ariunaa Tsogt, and D. Maisuren.' In addition to the blanket assertion problem, there is no proof that the persons Tsogt and Maisuren are lawyers. Communications with them, however, may be protected as work-product, but, again, there is no way to discern which of the communications, if any, are protected because there is no specification of communications.")

Case Date Jurisdiction State Cite Checked
2014-12-19 Federal MA

Chapter: 55.409
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "Another red flag was the massive scope of the log relative to the number of non-privileged documents that Mechel had produced. The initial privilege log was 672 pages long and contained 6,125 entries. As of September 12, 2014, Mechel had produced 11,201 documents, meaning that it had designated over one-third of the responsive documents as privileged. The underlying transaction was a business deal. Yet Mechel was claiming that one-third of the documents and communications relating to the transaction were legal in nature. One wonders how Mechel could ever get anything done if its personnel spend one-third of their time obtaining legal advice. Compounding the problem of the initial privilege log's sheer size was its incomprehensible structure. The 6,125 entries were not organized in chronological order. They did not appear to have been arranged in any particular order at all.")

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 55.409
Case Name: Skepnek v. Twardowsky, LLC, Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *14-15 (D. Kan. Sept. 4, 2014)
("The Court agrees with Judge O'Hara [magistrate judge]. Defendants' half-hearted attempt at a privilege log--providing only the name of the sender and the size and date of the allegedly privileged e-mails -- is exactly the type of 'blanket claim' that will not satisfy defendants' burden 'to provide sufficient information to enable the court to determine whether each element of the asserted privilege is satisfied.' . . . . Thus, Judge O'Hara's conclusion that defendants never established that the client e-mails are privileged was not 'clearly erroneous.'")

Case Date Jurisdiction State Cite Checked
2014-09-04 Federal KS

Chapter: 55.409
Case Name: Ellis v. Arrowood Indem. Co., Civil Action No. 2:14-mc-00146, 2014 U.S. Dist. LEXIS 121913, at *15 (S.D. W. Va. Sept. 2, 2014)
("The current privilege log and Arrowood's description of the privileged documents is insufficient for this court to render a ruling. In particular, with respect to the emails, the privilege log only identifies who sent the email, but does not describe the basic subject matter of the email. Instead, Arrowood has made only conclusory assertions that these documents are privileged, which courts generally find insufficient to meet the burden of establishing privilege.")

Case Date Jurisdiction State Cite Checked
2014-09-02 Federal WV

Chapter: 55.409
Case Name: International Cards Co., Ltd. v. MasterCard International Inc., 13-CV-02576 (LGS) (SN), 2014 U.S. Dist. LEXIS 125370 (S.D.N.Y. Aug. 27, 2014)
("When a party withholds a discovery document on the basis of either work product or attorney-client privilege, the Local Rules in this district require that the party provide complete identifying information, date, type of document, and subject matter in a privilege log at the time the party responds to discovery.")

Case Date Jurisdiction State Cite Checked
2014-08-27 Federal NY

Chapter: 55.409
Case Name: Sky Angel U.S., LLC v. Discovery Commc'ns, LLC, Civil Action No. DKC 13-0031, 2014 U.S. Dist. LEXIS 88569, at *37-39 (D. Md. June 30, 2014)
("In written discovery, ensuring that a privilege or protection is asserted properly in the first instance and maintained thereafter, involves several steps. . . . A party can sustain this burden through a properly prepared privilege log that identifies each document withheld, and contains information regarding the nature of the privilege/protection claimed, the name of the person making/receiving the communication, the date and place of the communication, and the document's general subject matter. . . . If, after this has been done, the requesting party challenges the sufficiency of the asserted privilege/protection, the asserting party may no longer rest on the privilege log, but bears the burden of establishing an evidentiary basis -- by affidavit, deposition transcript, or other evidence -- for each element of each privilege/protection claimed for each document or category of document. A failure to do so warrants a ruling that the documents must be produced because of the failure of the asserting party to meet its burden.")

Case Date Jurisdiction State Cite Checked
2014-06-30 Federal MD

Chapter: 55.409
Case Name: Manufacturers Collection Co. LLC v. Precision Airmotive, LLC, No. 3:12-cv-853-L, 2014 U.S. Dist. LEXIS 77522, *15-16 (N.D. Tex. June 6, 2014)
(holding that a category privilege log was acceptable; "Finally, the amended privilege log must break out each type of claimed protection -- including work-product protection, attorney-client privilege, joint-defense privilege, joint-prosecution privilege, allied-litigant privilege, and common legal interest -- into separate rows as to each category of withheld documents. This will involve unavoidable duplication. But this further breakdown of each category should also assist Precision's in assessing whether a challenge may be necessary to a particular category of document.")

Case Date Jurisdiction State Cite Checked
2014-06-06 Federal TX

Chapter: 55.409
Case Name: McNabb v. City of Overland Park, Case No. 12-CV-2331 CM/TJJ, 2014 U.S. Dist. LEXIS 37312, at *20 (D. Kan. Mar. 21, 2014)
("The first deficiency is that the privilege log identifies the parties to the communications by name only. The log fails to specify which individual, the sender or recipient of any given communication, is an attorney. This is vital information to convey to Plaintiff in a privilege log. Without identifying which individual in a communication is the attorney, there is presumably no attorney-client privilege. Defendant shall prepare a roster of all individuals identified in the privilege log with their name, title, department, and whether the person is an attorney.")

Case Date Jurisdiction State Cite Checked
2014-03-21 Federal KS B 8/14

Chapter: 55.409
Case Name: McNabb v. City of Overland Park, Case No. 12-CV-2331 CM/TJJ, 2014 U.S. Dist. LEXIS 37312, at *20-21 (D. Kan. Mar. 21, 2014)
("Defendant's privilege log also fails to identify the specific type of communication involved in each circumstance (e.g., email, letter, memo, transcript of a conversation, etc.). In context to the documents requested, they are presumably all emails, but Defendant must include that information somewhere on the privilege log, perhaps simply by including an additional column to the entire privilege log that identifies each communication by its type for every entry or otherwise specifying it within the description of the communication. For example, instead of describing the communication as 'communication regarding lawsuit expenses,' the privilege log could read 'email regarding lawsuit expenses.'")

Case Date Jurisdiction State Cite Checked
2014-03-21 Federal KS B 8/14

Chapter: 55.409
Case Name: Khasin v. Hershey Co., Case No. 5:12-cv-01862-EJD-PSG, 2014 U.S. Dist. LEXIS 23886, at *15-16 (N.D. Cal. Feb. 21, 2014)
(finding that Hershey did not waive its privilege by producing an inadequate log, but ordering a new log; "Khasin's third objection similarly seeks information not required by the Ninth Circuit. Although the Circuit does require the log to indicate the nature of the document, it has never required a privilege log to specifically note the titular subject of each document, and the court will not now create such a requirement.")

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 55.409
Case Name: Khasin v. Hershey Co., Case No. 5:12-cv-01862-EJD-PSG, 2014 U.S. Dist. LEXIS 23886, at *13 (N.D. Cal. Feb. 21, 2014)
(finding that Hershey did not waive its privilege by producing an inadequate log, but ordering a new log; "Khasin next argues that the log is insufficient because it does not correlate each entry with the document request to which it would be responsive, but again, such correlations are not required by the Ninth Circuit.")

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 55.409
Case Name: Khasin v. Hershey Co., Case No. 5:12-cv-01862-EJD-PSG, 2014 U.S. Dist. LEXIS 23886, at *13 (N.D. Cal. Feb. 21, 2014)
(finding that Hershey did not waive its privilege by producing an inadequate log, but ordering a new log; "[T]he Ninth Circuit's test does not require a privilege log to provide the organizational positions of senders and recipients; it merely requires the log to identify the attorney and the client on each document.")

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 55.409
Case Name: Khasin v. Hershey Co., Case No. 5:12-cv-01862-EJD-PSG, 2014 U.S. Dist. LEXIS 23886 (N.D. Cal. Feb. 21, 2014)
April 9, 2014 (PRIVILEGE POINT)

"Decision Highlights Courts' Differing Privilege Log Requirements"

Although Fed. R. Civ. P. 26 does not require privilege logs, most courts expect them – and many courts specifically require them. However, courts take widely varying approaches to log requirements.

In Khasin v. Hershey Co., Case No. 5:12-cv-01862-EJD-PSG, 2014 U.S. Dist. LEXIS 23886 (N.D. Cal. Feb. 21, 2014), plaintiff challenged defendant Hershey's privilege log. The court rejected Khasin's argument that Hershey's log improperly "failed to provide the organizational positions of senders and recipients." Id. at *12. The court noted that plaintiff's arguments "are based on an incorrect recitation of the requirements for a privilege log" – because plaintiff relied on the Second Circuit's "test for a sufficient privilege log [that] requires a greater degree of specificity than the one required by the Ninth Circuit." Id. at *12-13. The court pointedly noted that "the Ninth Circuit's test does not require a privilege log to provide the organizational positions of senders and recipients." Id. at *14.

As in so many other areas, litigants must check the pertinent court's specific approach to both the substance and the logistics of privilege claims.

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA
Comment:

key case


Chapter: 55.409
Case Name: Viteri-Butler v. Univ. of Cal., Case No. CV 12-02651 PJH (KAW), 2013 U.S. Dist. LEXIS 142430, at *20 (N.D. Cal. Sept. 30, 2013)
("[T]he College has not included detail supporting the privileges asserted, such as affirmations that no authorized persons have received the communications described in the privilege log, adequately specified the dates on which documents were prepared and sent to persons other than the document's author, or clearly identified the specific individuals who received those documents."; ordering an amended log within twenty-one days)

Case Date Jurisdiction State Cite Checked
2013-09-30 Federal CA B 5/14

Chapter: 55.409
Case Name: Viteri-Butler v. Univ. of Cal., Case No. CV 12-02651 PJH (KAW), 2013 U.S. Dist. LEXIS 142430, at *18 (N.D. Cal. Sept. 30, 2013)
("This court's standing order provides that a privilege log shall include the following information for each document or for each category of similarly situated documents: . . . The title and description of the document, including number of pages or Bates-number range.")

Case Date Jurisdiction State Cite Checked
2013-09-30 Federal CA B 5/14

Chapter: 55.409
Case Name: Viteri-Butler v. Univ. of Cal., Case No. CV 12-02651 PJH (KAW), 2013 U.S. Dist. LEXIS 142430, at *18-19 (N.D. Cal. Sept. 30, 2013)
("This court's standing order provides that a privilege log shall include the following information for each document or for each category of similarly situated documents: . . . The steps taken to ensure the confidentiality of the communication, including affirmation that no unauthorized persons have received the communication.")

Case Date Jurisdiction State Cite Checked
2013-09-30 Federal CA B 5/14

Chapter: 55.409
Case Name: Osborn v. Griffin, Civ. A. Nos. 11-89- & 13-32-WOB-CJS, 2013 U.S. Dist. LEXIS 132613, at *14 (E.D. Ky. Sept. 17, 2013)
(ordering a litigant to supplement an insufficient log; "If Thompson Hine is asserting work product protection, it shall also note the anticipated litigation.")

Case Date Jurisdiction State Cite Checked
2013-09-17 Federal KY B 4/14

Chapter: 55.409
Case Name: Lowe's Home Ctrs., Inc. v. THF Clarksburg Dev. Two, L.L.C., Civ. A. No. 1:12 cv 72, 2013 U.S. Dist. LEXIS 96978, at *6 (N.D. W. Va. July 11, 2013)
(ordering defendant to supplement an incomplete log within seven days; "[T]he privilege log does not provide the relationship of the author, addressees, and recipients to each other.")

Case Date Jurisdiction State Cite Checked
2013-07-11 Federal WV B 4/14

Chapter: 55.409
Case Name: Little Hocking Water Ass'n v. E.I. Du Pont De Nemours & Co., Civ. A. 2:09-cv-1081, 2013 U.S. Dist. LEXIS 22213, at *34 (S.D. Ohio Feb. 19, 2013)
(finding that the privilege log should include the following information: "'The number of pages of the document.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 55. 409
Case Name: Little Hocking Water Ass'n v. E.I. Du Pont De Nemours & Co., Civ. A. 2:09-cv-1081, 2013 U.S. Dist. LEXIS 22213, at *25-26, *26 (S.D. Ohio Feb. 19, 2013)
("Little Hocking's privilege log does not identify 'litigation consultants' by name, referring to them simply as 'LC' or 'L/C.'. . . In other words, there is no way to distinguish one consultant from another or to ascertain from Little Hocking's privilege log whether or not the 'litigation consultant' appearing in a particular entry was the 'particular litigation consultant' purportedly retained to assist in formulating legal strategy. As the party resisting production, Little Hocking bears the burden of establishing the existence of the attorney client privilege. See, e.g., United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999). For the reasons discussed supra, Little Hocking's cryptic privilege log does not provide sufficient information to enable the Court to determine if the consultant notes are privileged."; "Accordingly, viewing this record as a whole, the Court concludes that Little Hocking has not established that the attorney client privilege protects the notes and compilations authored by 'litigation consultants.'")

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 55.409
Case Name: Certain Underwriters at Lloyd's v. Taylor, Bean & Whitaker Mortgage Corp (In re Taylor, Bean & Whitaker Mortgage Corp.), 493 B.R. 872, 876-77 (M.D. Fla. 2013)
("In addition to submitting the subject documents for an in camera inspection, Underwriters shall file a memorandum setting forth their reasons for the redaction or withholding of each document. The memorandum shall, at a minimum, sufficiently identify each author and recipient of the communication by providing: (1) the individual's name; (2) his or her employer at the time of the communication; (3) whether they are an attorney; (4) if they are an attorney, who they represented at the time of the communication; and (5) if they are not an attorney, the individual's position or role in the company that employed them at the time of the communication.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 55.409
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 253 (E.D. Va. 2012)
("Fourth, some entries are missing date information and three entries fail to assert privilege log type. Although ePlus argues that the privilege is waived for these entries, the missing date is a minor deficiency which does not prevent ePlus from attacking Lawson's claim of privilege. Also, in a log with 9,706 entries, the fact that Lawson inadvertently failed to assert privilege type for three entries is certainly understandable. The privilege is not waived with respect to those three entries or the entries that lack date information.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA B 4/13

Chapter: 55.409
Case Name: Cappetta v. GC Servs. Ltd. P'ship, Civ. A. No. 3:08CV288, 2008 U.S. Dist. LEXIS 103902, at *12 (E.D. Va. Dec. 24, 2008)
("An adequate 'privilege log' should contain: 'a brief description or summary of the contents of the document, the date the document was prepared, the person or persons who prepared the document, the person to whom the document was directed, or for whom the document was prepared, the purpose in preparing the document, the privilege or privileges asserted with respect to the document, and how each element of the privilege is met as to that document.' Burns, 164 F.R.D. at 594 [Burns v. Imagine Films Entertainment, Inc., 164 F.R.D. 589 (W.D.N.Y. 1996)].")

Case Date Jurisdiction State Cite Checked
2008-12-24 Federal VA

Chapter: 55.409
Case Name: Kawar v. Bouk, 71 Va. Cir. 295, 297 (Va. Cir. Ct. 2006)
("As to all the requests where Defendants objected on the grounds of attorney client privilege and/or work product, Defendants may withhold documents on those grounds so long as a privilege log is provided to Plaintiff. The privilege log should specify the nature of the document (e.g., letter, memorandum, note, etc.), the date of the document, to whom the document was sent, by whom the document was prepared, and a general description of the content of the document. Upon receiving such a privilege log, Plaintiff may contest the assertion of such privilege by filing an appropriate motion.")

Case Date Jurisdiction State Cite Checked
2006-01-01 State VA

Chapter: 55.409
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 273 (E.D. Va. 2004)
("Many of the entries on Rambus' log simply lack the information necessary to determine whether a privilege applies. For instance, respecting the work product doctrine, many entries on Rambus' privilege log do not state whether an attorney was involved in the creation of the document or whether the document was created in anticipation of litigation. Moreover, as to those entries asserting the attorney client privilege, many do not even state whether the communication involved legal advice. United States v. Bollin, 264 F.3d 391, 412 (4th Cir. 2001).")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA

Chapter: 55.409
Case Name: Haugh v. Schroder Investment Management North Am. Inc., 02 Civ. 7955 (DLC), 2003 U.S. Dist. LEXIS 14586 (S.D.N.Y. Aug. 25, 2003)
("This need [sufficient to overcome the work product protection] is potentially addressed by only one document, Document #40, which is described in the privilege log as a 'note to public relations person attaching draft letter by counsel . . .,' and is dated in the log, May 6, 2002. As plaintiff points out in her brief, however, this date is misleading. Document #40 is actually two documents: a handwritten cover letter, presumably from Haugh, and an annotated letter addressed to Schroder's CEO Dobson prepared by Haugh's former counsel. It is the annotated letter that is dated May 6, and there is no reason to believe that these documents were transmitted to Murray any earlier than September. The letter is drafted by counsel is entitled to the heightened protection available to documents that reflect the opinion work product of attorneys, which defendants cannot overcome.")

Case Date Jurisdiction State Cite Checked
2003-08-25 Federal NY

Chapter: 55.409
Case Name: The Christian Coalition Int'l v. United States, No. 2:01CV377, 2002 U.S. Dist. LEXIS 11427, *8-9 (E.D. Va. May 31, 2002)
("The government contends that the privilege log issued by the plaintiff for asserting the attorney/client privilege is inadequate because it does not identify various individuals in the log. At the hearing, the Court directed the plaintiff to certify under oath if the individuals named in the privilege log were an officer/employee of The Christian Coalition International or an individual protected by attorney/client privilege. On February 14, 2002, a certification under oath was received and filed by the Clerk from Alan P. Dye, Esq., counsel for The Christian Coalition International . . . This document certifies that the individuals identified in the privilege log were officers or employees or otherwise covered by the attorney/client privilege except for six documents identified in the certification for which the plaintiff withdrew the privilege. The Court is satisfied that the privilege log, as supplemented by the certification under oath, is sufficient to withstand the government's motion to compel.")

Case Date Jurisdiction State Cite Checked
2002-05-31 Federal VA

Chapter: 55.409
Case Name: Board of Dirs. of Port Royal Condo. Unit Owners' Ass'n v. Crossland Sav. F.S.B., 19 Va. Cir. 8, 9 (Va. Cir. Ct. 1989)
(requiring "defendants to file the so-called 'Vaughn' index disclosing the dates, senders, and receivers and a summary description of the documents in question")

Case Date Jurisdiction State Cite Checked
1989-01-01 State VA

Chapter: 55.411
Case Name: Rubie's Costume Co. v. Kangaroo Manufacturing, Inc., CV 16-6517 (SJF) (AKT), 2018 U.S. Dist. LEXIS 168220 (E.D.N.Y. Sept. 28, 2018)
(analyzing work product and common interest issues in connection with an investigation into possible trademark infringement; "As an initial matter, the Court acknowledges that it does not appear Defendants' counsel complied with Local Civil Rule 37.3(a), in that he did not submit any certification that he met and conferred in good faith with Plaintiffs' counsel in an attempt to resolve the instant dispute. Notwithstanding this fact, given the number of points of contention and the distance between the parties on each issue, the Court recognizes the likelihood that even if the appropriate meet-andconfer had occurred, there would likely still be several disputes for the Court to resolve. The Court in its discretion therefore declines to deny the motion on this basis.")

Case Date Jurisdiction State Cite Checked
2018-09-28 Federal NY

Chapter: 55.411
Case Name: Scheller v. Williams Cos., Case No. CIV-17-632-M, 2018 U.S. Dist. LEXIS 96880 (W.D. Okla. June 1, 2018)
(ordering another "meet and confer" before ruling on privilege issues; "Because of the timing of the production of the privilege log in relation to the briefing of the instant motion and because the meet and confer between the parties occurred prior to the production of the privilege log, the Court finds it is unable to rule on any claims of privilege at this time. Specifically, the Court orders the parties to meet and confer regarding the documents in dispute on the privilege log. Once the parties have met and conferred, and if there are remaining documents in dispute, plaintiff shall file a motion regarding those documents. After that motion is fully briefed, the Court will determine whether defendants need to produce the disputed documents to the Court for an in camera review.")

Case Date Jurisdiction State Cite Checked
2018-06-01 Federal OK

Chapter: 55.411
Case Name: West Bend Mutual Ins. Co. v. Zurich American Ins. Company, No. 17 C 2598, 2018 U.S. Dist. LEXIS 61016 (N.D. Ill. April 11, 2018)
(explaining that the litigants' "meet and confer" must have been perfunctory, and requiring them to be more detailed next time; "One further point needs to be made. The parties claim that they complied with the dictates of Local Rule 37.2 by having two discussion on January 10 and 11, 2018 about these issues. It is troubling, then, that after those discussions, counsel for West Bend filed a motion to compel that seemingly flies in the fact of applicable law on at-issue waiver and counsel for Zurich, in the wake of the motion and upon direction from the court, apprised themselves of applicable caselaw and slashed Zurich's privilege claims by 80%. Local Rule 37.2 mandates, not discussions, but 'good faith' discussions. Chatting for a bit about a dispute and maintaining an untenable position at worst or a tenuous position at best, is not engaging in a good faith meet and confer."; "[A]ny future discovery motion must contain a detailed, joint statement of the parties' efforts to resolve their disputes over each of the document requests at issue, along with their final positions, supported by pertinent authority, on each request that remains in dispute.")

Case Date Jurisdiction State Cite Checked
2018-04-11 Federal IL

Chapter: 55.411
Case Name: Sidibe v. Health, Case No. 12-cv-04854-LB, 2018 U.S. Dist. LEXIS 20350 (N.D. Cal. Feb. 7, 2018)
(holding that a company's CFO's presentation did not deserve privilege protection under the primary purpose standard; "The court finds that Sutter has not met its burden of establishing that the redacted portion of the document bates-stamped DEF001993743-51, which Sutter provided to the court unredacted as PrivID 00704, is privileged. The redacted portion of the document appears to be a presentation delivered by Sutter's Chief Financial Officer and a regional CFO to general non-lawyer 'Strategy Session Participants' on business matters, as part of a larger day-long strategy meeting on business matters, and does not appear to be related to the rendition of legal (as opposed to business) advice. Nor does Sutter's privilege log entry -- which contains only a vague allusion that the redacted portion of this document somehow 'reflect[s] legal advice' from the 'Legal Department' -- meet its burden of establishing that the redacted portion of this document is privileged.")

Case Date Jurisdiction State Cite Checked
2018-02-07 Federal CA

Chapter: 55.411
Case Name: Violetta v. Steven Bros. Sports Mgmt., LLC, Case No. 16-1193-JTM-GEB, 2017 U.S. Dist. LEXIS 135861 (D. Kansas Aug. 24, 2017)
("[I]t is true that Defendants failed to identify, on their privilege log, the specific requests to which the listed documents and objections relate. This is not only a questionable practice, but doing so may have helped to clarify the issues in this particular dispute. Finding a lack of clarity on both sides of this discovery issue, the Court declines to impose the harsh sanction of waiver and instead reviews the privilege issues on the merits.")

Case Date Jurisdiction State Cite Checked
2017-08-24 Federal KS

Chapter: 55.411
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 7965 (5th Cir. App. May 4, 2017)
("BDO's privilege log is too vague to enable a determination of 'which BDO officials were properly within the sphere of confidentiality or whether dissemination to some employees broke the confidentiality, even if confidentiality initially existed.' At minimum, the log leaves open questions about (1) whether emails courtesy copied to a third party remained privileged.")

Case Date Jurisdiction State Cite Checked
2017-05-04 Federal

Chapter: 55.411
Case Name: Norton v. Town of Islip, County fo Suffolk, CV 04-3079 (PKC) (SIL), 2017 U.S. Dist. LEXIS 33977 (E.D.N.Y. March 9, 2017)
(holding that categorical privilege logs are sometimes acceptable, but not in the circumstances before the court; "Defendants are directed to promulgate a revised privilege log, which, considering the recent waiver, must include all individuals who had access to the documents and when that access was provided. . . . the Court directs Defendants to identify where each of the documents were kept and who had access to that location. For the sake of clarity, the revised privilege log must outline for each document and handwritten note: (1) the date of creation; (2) the identity of each person who created and received the document, including those copied on it, and the title of each individual; (3) a more elaborate description, without revealing the substance of the communications, as to the basis of the privilege(s); (4) the subject matter of the document; (5) the privilege(s) being asserted; (6) where the document was kept; and (7) each person who has been given access to each of the document's locations and the date that access was provided.")

Case Date Jurisdiction State Cite Checked
2017-03-09 Federal NY
Comment:

key case


Chapter: 55.411
Case Name: NLRB v. NPC International, Inc., 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017)
("Turning now to a review of the log submitted by NPC, the Court agrees that it is insufficient. The descriptions provided by Respondent leave much to be desired. The privilege log lists 107 documents, all of which are emails. . . . The log lists the date the emails were sent, the author/sender and recipient, the bates stamp, the subject, and the privilege or protection claimed. . . . Some examples of the descriptions provided in the 'subject' category are 'Dr.'s notes,' 'Penley,' 'meeting on voids,' 'NPC,' 'subpoena,' 'employee history,' 'release,' and 'workman's comp.'. . . This is only a sample of the 'subjects' provided, but the remaining descriptions are equally thin. These explanations are wholly inadequate to enable the Court to determine whether the items were properly withheld.")

Case Date Jurisdiction State Cite Checked
2017-02-16 Federal TN

Chapter: 55.411
Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)
(finding the common interest doctrine inapplicable for a communications with certain members of the University's board, because the University's privilege log did not identify the board members; "The University's Privilege Log does not identify the roles of the individuals listed in the log. S ee generally Privilege Log. Despite an earlier ruling from Judge Peebles that the Privilege Log was insufficient . . . The University still has not identified which individuals listed in the Privilege Log are members of the Board of Trustees . . . . The University argues that although the Privilege Log did not indicate which recipients of specified communications were Board members, 'the University's privilege log clearly indicated that each recipient of the six communications are within the common-interest privilege shared by the University and its Board.'"; "The University's argument is unavailing, since the Privilege Log not only fails to identify members of the Board, but also fails to indicate the role of any person listed, or to specifically invoke the common-interest privilege. . . . Furthermore, with respect to members of the Board, the University never submitted evidence regarding '[o]ther required information, such as the relationship between . . . Individuals not normally within the privileged relationship.'. . . The Court therefore finds that Judge Peebles did not err in finding that the University had not met its burden to show that the common-interest privilege applies to documents shared with the Board.")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY

Chapter: 55.411
Case Name: Neelon v. Krueger; Civ. A. No. 12-11198-IT, 2014 U.S. Dist. LEXIS 175792 (D. Mass. Dec. 19, 2014)
("The Court has read the Declaration of the plaintiff . . . And notes his statement . . . That it took him 'three full working days' to prepare the privilege log which he filed in this case. Before beginning that undertaking, it would have behooved plaintiff to review the law as to what was required in a privilege log. If he had done so, he would have realized that any time spent compiling what was ultimately produced in the way of a privilege log was wasted.")

Case Date Jurisdiction State Cite Checked
2014-12-19 Federal MA

Chapter: 55.411
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "Another red flag was the massive scope of the log relative to the number of non-privileged documents that Mechel had produced. The initial privilege log was 672 pages long and contained 6,125 entries. As of September 12, 2014, Mechel had produced 11,201 documents, meaning that it had designated over one-third of the responsive documents as privileged. The underlying transaction was a business deal. Yet Mechel was claiming that one-third of the documents and communications relating to the transaction were legal in nature. One wonders how Mechel could ever get anything done if its personnel spend one-third of their time obtaining legal advice. Compounding the problem of the initial privilege log's sheer size was its incomprehensible structure. The 6,125 entries were not organized in chronological order. They did not appear to have been arranged in any particular order at all.")

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 55.411
Case Name: Warren v. Bastyr Univ., No. 2:11-cv-01800-RSL, 2013 U.S. Dist. LEXIS 71269, at *4, *4-5 (W.D. Wash. May 17, 2013)
("Simply adding an attorney to a distribution list does not mean that the communication requests or reflects the advice of counsel."; "More fundamentally, defendant's privilege log identifies at least twenty emails between non-attorneys, with no indication that Mr. Burgon was involved at all. . . . Most of these emails are described as 'Forward of attorney-client communications from Steve Burgon.' The Court has no doubt that an employee who seeks the advice of counsel may forward the substance of that advice to others within the organization who have a need to know without losing its privileged character. It is not, however, clear that the underlying communications that are being forwarded are privileged. It is just as likely that they are simply business communications passed through the hands of counsel. This suspicion is heightened by the fact that one entry is specifically described as 'regarding legal advice from Steve Burgon,' which raises the obvious concern that the remaining entries do not, in fact, reflect legal advice.")

Case Date Jurisdiction State Cite Checked
2013-05-17 Federal WA B 3/14

Chapter: 55.411
Case Name: RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 221 (N.D. Ill. 2013)
("With regards to the disputed e-mails, RBS notes that many of them are only responsive and privileged by virtue of their attachments. . . . E-mails can be produced independently of their attachments, and vice versa. . . . To the extent the e-mails are not themselves privileged (i.e., are not listed below as protected) and are responsive, and to the extent the e-mails are necessary to contextualize the non-privileged responsive attachments, RBS is directed to produce them. If the e-mails are privileged, RBS is directed to describe them on their privilege log in a manner that conforms with Rule 26(b)(5). The Court entrusts RBS with determining whether the e-mails are responsive or not.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal IL B 4/14

Chapter: 55.502
Case Name: Neelon v. Blair Krueger, Civ. A. No. 12-cv-11198-IT, 2015 U.S. Dist. LEXIS 29146 (D. Mass. March 10, 2015)
("Plaintiff and Defendants were opposing parties in these other cases and Plaintiff's statements provided the court with adequate notice of that fact. . . . The magistrate judge's finding to the contrary was clearly erroneous. Accordingly, the court finds that Plaintiff's communications with counsel in the California -- and Quebec-based litigation (limited to the time period in which Plaintiff was involved in those actions) are presumptively privileged and need not be disclosed.")

Case Date Jurisdiction State Cite Checked
2015-03-10 Federal MA

Chapter: 55.502
Case Name: Adair v. EQT Prod. Co., 294 F.R.D. 1, 4 (W.D. Va. 2013)
("An assertion that a document is protected by the work-product doctrine must be established by specific facts and not conclusory statements.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal VA B 5/14

Chapter: 55.503
Case Name: In re Abilify Aripiprazole Prods. Liab. Litig., Case No. 3:16-md-2734, 2017 U.S. Dist. LEXIS 213493 (N.D. Fla. Dec. 29, 2017)
("Under the ESI Order a party is required only to log attachments separately when the attachments are withheld on the basis of privilege. But where a party withholds the attachment as a single privileged communication the party is permitted to log the group of documents as a single entry.")

Case Date Jurisdiction State Cite Checked
2017-12-29 Federal FL

Chapter: 55.503
Case Name: La. Municipal Police Employees Retirement Sys. v. Green Mountain Coffee Roasters, Inc., Case No. 2:11-cv-289, 2017 U.S. Dist. LEXIS 165151 (D. Vt. April 7, 2017)
("In their reply memorandum, Plaintiffs highlight their concern that Defendants have withheld transmittal emails, attachments, and entire email strings when only portions of those documents are privileged. It does appear from Defendants' briefing that non-privileged communications may have been withheld. . . . Accordingly, to the extent that Defendants have withheld those types of communications, Plaintiffs' motion to compel is granted.")

Case Date Jurisdiction State Cite Checked
2017-04-07 Federal VT

Chapter: 55.503
Case Name: Hawker v. Bancinsurance, Inc., Case No. 1:12-cv-01261-SAB, 2013 U.S. Dist. LEXIS 180831, at *15 n.28 (E.D. Cal. Dec. 27, 2013)
("The privilege log reveals that the e-mails to which Defendant is claiming attorney-client privilege do contain attachments. However, it is the Court's understanding, based upon Defendant's counsel's representation at the hearing and in the joint statement, that all documents attached to e-mails have been produced, with privileged information produced in redacted form. . . . The Court accepts the representation that all non-privileged documents have been produced.")

Case Date Jurisdiction State Cite Checked
2013-12-27 Federal CA B 5/14

Chapter: 55.503
Case Name: Fox v. Shinseki, No. CV 11-04820 EDL, 2013 U.S. Dist. LEXIS 82087, at *18 (N.D. Cal. June 10, 2013)
("With regard to attachments, they should be produced unless Plaintiff can articulate a valid reason that the document should be withheld, and the document is included in an appropriate privilege log entry.")

Case Date Jurisdiction State Cite Checked
2013-06-10 Federal CA B 4/14

Chapter: 55.503
Case Name: RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 221 (N.D. Ill. 2013)
("With regards to the disputed e-mails, RBS notes that many of them are only responsive and privileged by virtue of their attachments. . . . E-mails can be produced independently of their attachments, and vice versa. . . . To the extent the e-mails are not themselves privileged (i.e., are not listed below as protected) and are responsive, and to the extent the e-mails are necessary to contextualize the non-privileged responsive attachments, RBS is directed to produce them. If the e-mails are privileged, RBS is directed to describe them on their privilege log in a manner that conforms with Rule 26(b)(5). The Court entrusts RBS with determining whether the e-mails are responsive or not.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal IL B 4/14

Chapter: 55.504
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 592 n.175 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "Each e-mail communication should be listed individually on a privilege log.")

Case Date Jurisdiction State Cite Checked
2913-01-01 Federal FL B 4/14

Chapter: 55.504
Case Name: Basso v. New York University, 16-CV-7295 (VM) (KNF), 2018 U.S. Dist. LEXIS 126149 (S.D.N.Y. July 27, 2018)
("The defendant's privilege log is deficient and misleading. Each challenged e-mail message in the defendant's privilege log is described as a single e-mail message. However, each entry from the defendant's privilege log that is at issue contains an e-mail message string consisting of e-mail messages that have been sent to or received by different individuals on multiple dates or multiple times on the same date.")

Case Date Jurisdiction State Cite Checked
2018-07-27 Federal NY
Comment:

key case


Chapter: 55.504
Case Name: Heartland Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 U.S. Dist. LEXIS 124654 (S.D. Ind. July 25, 2018)
("[T]he Court is not surprised that a later email in a thread would include new or additional information that an earlier email did not, and does not agree with Plaintiffs' contention that this portends an inaccurate privilege log.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal IN

Chapter: 55.504
Case Name: Sidibe v. Health, Case No. 12-cv-04854-LB, 2018 U.S. Dist. LEXIS 20350 (N.D. Cal. Feb. 7, 2018)
("The fact that there are some privileged communications within this email chain 'is not enough to confer privilege on every subsequent email in the chain; each communication must survive independent analysis.'")

Case Date Jurisdiction State Cite Checked
2018-02-07 Federal CA

Chapter: 55.504
Case Name: Durling v. Papa John's Int'l, Inc., 16 Civ. 3592 (CS) (JCM), 2018 U.S. Dist. LEXIS 11584 (S.D.N.Y. Jan. 24, 2018)
(finding that a client agent/consultant analyzed the appropriate reimbursement for delivery drivers was not the function equivalent of a Papa John's employee, and was outside privilege protection; also finding that the work product doctrine did not protect documents created by the agent/consultant because it was not motivated by litigation; "Plaintiffs also object to PJI's [Papa John's] claims of privilege over entire e-mail strings. . . . Plaintiffs argue that, where an email string contains individual non-privileged e-mails, PJI should have redacted the discrete privileged portions, as opposed to withholding the string entirely. . . . PJI asserts that it 'reviewed the most inclusive e-mail strings that it collected and claimed privilege if the string included confidential communications with an attorney.'. . . PJI further asserts that the review and redaction suggested by Plaintiffs would be unduly burdensome, 'as it would require PJI to review and potentially redact 1,630 individual email messages currently included in 1,064 logged email threads.'"; "The Court acknowledges PJI's argument that some non-privileged, responsive e-mails that were incorporated into privileged strings were already produced to the extent the "string existed in a non-privileged form (i.e., before an attorney was involved).'. . . However, the strength of that argument depends on, among other things, the breadth and completeness of PJI's initial document collection. There is a risk that categorically withholding all privileged strings in their entirety will deprive Plaintiffs of information to which they are entitled, especially where, as here, PJI's in-house attorneys were closely involved in the relevant decision-making and the relevant discussions involved both legal and business components. PJI has not adequately demonstrated that, under the circumstances, reviewing and redacting the strings at issue would be unduly burdensome. Therefore, PJI 'may not withhold the entirety of a conversation merely because one portion of such communication is subject to privilege.' Instead, PJI must 'selectively redact the document in question' and produce any non-privileged portions, unless those portions are all plainly non-responsive and irrelevant.")

Case Date Jurisdiction State Cite Checked
2018-01-24 Federal NY

Chapter: 55.504
Case Name: In re Premera Blue Cross Customer Data Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762 (D. Ore. Oct. 27, 2017)
(holding that Premera Blue Cross's investigation did not protect its investigation into a data breach; "Plaintiffs argue that Premera may redact documents that contain some privileged and some nonprivileged information and must then produce the nonredacted portions. The Court agrees. When an email chain contains an email that is privileged or contains privileged information and the remaining emails in that chain do not contain privileged information, the privileged material may be redacted but the remaining material must be produced.")

Case Date Jurisdiction State Cite Checked
2017-10-27 Federal OR

Chapter: 55.504
Case Name: In re Premera Blue Cross Customer Data Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762 (D. Ore. Oct. 27, 2017)
(holding that Premera Blue Cross's investigation did not protect its investigation into a data breach; "The Court notes that Premera represents that some email chains contain no more than 'FYI' or the like for the nonprivileged portion and that it would be burdensome to redact the entire privileged portion to only produce a document containing 'FYI.' The Court agrees. But that was done before this Court issued this Opinion and Order, in which many of Premera's privilege assertions have been rejected. Going forward, if there is an email string and the only nonprivileged portion is something without substance such as 'FYI,' Premera need only identify it as such on the privilege log and need not redact and produce the meaningless nonprivileged portion.")

Case Date Jurisdiction State Cite Checked
2017-10-27 Federal OR
Comment:

key case


Chapter: 55.504
Case Name: In re Syngenta AG MIR 162 Corn Litig., MDL No. 2591, Case No. 14-md-2591-JWL, 2017 U.S. Dist. LEXIS 92606 (D. Kansas June 13, 2017)
("'As a general rule in this district, litigants must list each e-mail within a string as a separate entry on the privilege log rather than listing the e-mail string as a single entry, or risk the possibility that the privilege will be deemed waived.'")

Case Date Jurisdiction State Cite Checked
2017-06-13 Federal KS

Chapter: 55.504
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 7965 (5th Cir. App. May 4, 2017)
("Emails involving counsel are also problematic, as the log's descriptions do not indicate whether a particular entry consists of one email or a string of emails -- a distinction that may be dispositive as to whether the privilege applies.")

Case Date Jurisdiction State Cite Checked
2017-05-04 Federal

Chapter: 55.504
Case Name: La. Municipal Police Employees Retirement Sys. v. Green Mountain Coffee Roasters, Inc., Case No. 2:11-cv-289, 2017 U.S. Dist. LEXIS 165151 (D. Vt. April 7, 2017)
("In their reply memorandum, Plaintiffs highlight their concern that Defendants have withheld transmittal emails, attachments, and entire email strings when only portions of those documents are privileged. It does appear from Defendants' briefing that non-privileged communications may have been withheld. . . . Accordingly, to the extent that Defendants have withheld those types of communications, Plaintiffs' motion to compel is granted.")

Case Date Jurisdiction State Cite Checked
2017-04-07 Federal VT

Chapter: 55.504
Case Name: La. Municipal Police Employees Retirement Sys. v. Green Mountain Coffee Roasters, Inc., Case No. 2:11-cv-289, 2017 U.S. Dist. LEXIS 165151 (D. Vt. April 7, 2017)
("With respect to 'families' of documents, such as entire email strings that may be only partially privileged, Plaintiffs again raise a concern that Defendants have over-withheld. The concern may be valid . . . At a minimum, documents should be produced in redacted form so that only the privileged portions are withheld.")

Case Date Jurisdiction State Cite Checked
2017-04-07 Federal VT

Chapter: 55.504
Case Name: La. Municipal Police Employees Retirement Sys. v. Green Mountain Coffee Roasters, Inc., Case No. 2:11-cv-289, 2017 U.S. Dist. LEXIS 165151 (D. Vt. April 7, 2017)
("In their reply memorandum, Plaintiffs highlight their concern that Defendants have withheld transmittal emails, attachments, and entire email strings when only portions of those documents are privileged. It does appear from Defendants' briefing that non-privileged communications may have been withheld. . . . Accordingly, to the extent that Defendants have withheld those types of communications, Plaintiffs' motion to compel is granted.")

Case Date Jurisdiction State Cite Checked
2017-04-07 Federal VT

Chapter: 55.504
Case Name: Feld v. Fireman's Fund Insurance Co., Civ. A. No. 12-1789 (JDB), 2014 U.S. Dist. LEXIS 52525 (D.D.C. Apr. 16, 2014)
July 2, 2014 (PRIVILEGE POINT)

"Court Requires an Adversary to Specifically Challenge a Litigant's Privilege Log"

In most situations, litigants withholding protected documents must specifically list and describe the documents, rather than relying on blanket privilege or work product assertions. Do courts require an adversary to show the same level of specificity in challenging a litigant's privilege log?

In Feld v. Fireman's Fund Insurance Co., Civ. A. No. 12-1789 (JDB), 2014 U.S. Dist. LEXIS 52525 (D.D.C. Apr. 16, 2014), circus owner Feld sought attorneys' fees after winning an insurance coverage action against defendant insurance company. Among other things, the insurance company challenged Feld's withholding of documents on work product protection grounds. Although acknowledging that the defendant "ha[d] not seen the actual documents, so it might have been difficult to offer detailed objections to individual entries on Feld's privilege log," the court noted that defendant "has not even attempted to do so, instead offering only one paragraph of generalized argument that is purportedly applicable to every single document in dispute." Id. at *9. The court rejected the insurance company's blanket challenge to Feld's log -- concluding that Feld's lawyers "are presumed to be conducting themselves diligently and in good faith" in preparing privilege logs in their role as "officers of the court." Id. at *11. The court nevertheless "reviewed a limited sample of the disputed documents in camera" and found Feld's privilege log adequate. Id. (footnote omitted). Interestingly, the court specifically described one log entry as an "email thread" -- thus implicitly disagreeing with courts that require each email to be separately logged. Id. at *13.

Corporations that frequently log numerous protected documents should take comfort in both aspects of such common-sense opinions.

Case Date Jurisdiction State Cite Checked
2014-04-16 Federal DC
Comment:

key case


Chapter: 55.504
Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2014 U.S. Dist. 52525 (D.D.C. April 16, 2014)
(analyzing privilege log issues in connection with plaintiff's attempt to recover attorney's fees after winning an insurance coverage case; "Feld claims privilege over a January 10, 2010 '[e]mail thread including emails among Fulbright attorneys and accounting personnel re: disclosure of tax ID number to FFIC, FFIC system for reimbursement, and invoice redaction.'. . . Feld claims this email thread is attorney work product 'in anticipation of litigation with FFIC.' Id. Feld is correct. In this email thread, Fulbright attorneys (and staff, who are also covered by the work-product privilege) . . . discuss how much information should be disclosed to FFIC, and in what form, in light of the objections FFIC had already raised to many of Feld's reimbursement requests. It is the equivalent of a strategy meeting in anticipation of this litigation but taking place via email chain rather than around a conference room table. It too is privileged.")

Case Date Jurisdiction State Cite Checked
2014-04-16 Federal DC

Chapter: 55.504
Case Name: Harbinger F&G, LLC v. OM Grp. (UK), No. 12-CV-5315 (RA) (AJP), 2013 U.S. Dist. LEXIS 132009, at *10-11 (S.D.N.Y. Aug. 22, 2013)
("Harbinger has provided author and recipient information only for the last email in a chain, which not infrequently reflects a communication among non-attorneys or in-house counsel with arguably dual roles. While I appreciate the practical reasons for this limitation, it means that the log itself may not reflect earlier communications with outside counsel in the same chain that provide the basis for the chain of privilege. Moreover, information provided regarding the basis for the assertion of privilege is often 'boilerplate' that makes it difficult to assess the claim of privilege. OM's request for in camera review of the withheld and redacted documents is therefore not without reasonable foundation.")

Case Date Jurisdiction State Cite Checked
2013-08-22 Federal NY B 4/14

Chapter: 55.504
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 642 (D. Nev. 2013)
("[T]he court is not inclined at this juncture to order the reproduction of all of the e-mails in this document production in separate format or to require separate itemization in the privilege log. This conclusion is in accord with the court's finding in Dawe [Dawe v. Corr. USA, 263 F.R.D. 613 (E.D. Cal. 2009)] that Rule 26(b)(5)(A) does not require separate itemization of e-mails in a privilege log. . . . However, this does not mean the e-mails that were part of an e-mail chain that are not privileged in and of themselves should not have been produced if they existed separately assuming they are otherwise relevant and responsive.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NV B 3/14

Chapter: 55.504
Case Name: United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., Case No. 6:09-cv-1002-Orl-31TBS, 2012 U.S. Dist. LEXIS 158944, at *14 (M.D. Fla. Nov. 6, 2012)
("Whether each email in an email string should be listed separately in a privilege log is a matter upon which courts differ. The Eleventh Circuit Court of Appeals has yet to rule on the issue. I adopt the position (for which there is overwhelming support) that each email in an email string must be listed separately so the court (and the opposing party) may make an attorney-client privilege determination with regards to each email in the string.")

Case Date Jurisdiction State Cite Checked
2012-11-06 Federal FL B 5/13

Chapter: 55.504
Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 111 (D.D.C. 2012)
(holding that a litigant could not withhold an entire e-mail string that had been forwarded to the lawyer, but instead had to produce all but the final e-mail forwarding the string to the lawyer; "Some documents contain an entire string of e-mails being sent back and forth, in which the correspondence addresses legal strategies, proffers of advice, or potential avenues for the settlement. Document #2190 is such a chain, and as such, it is privileged in its entirety. However, in instances where there are multiple e-mails in a single string, and only one of those e-mails contains privileged material, the privileged component may be excised but the remainder of the e-mail string must be disclosed. I hope that the parties will find this consistent with my treatment of the transmittal e-mails described in [previously]. For example, document #1318 contains multiple e-mails back and forth among several groups of people, with only the final e-mail indicating a request for legal advice. In instances such as this, only the specific email that is privileged may be withheld or redacted; the rest must be disclosed.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 55.504
Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 503 (4th Cir. 2011)
("To the extent that the replies to Jill Slaughter's February 9, 2009 e-mails were written by non-lawyers, the work-product privilege might not apply. Similarly, if the e-mails failed any of the Jones [United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)] criteria, the attorney-client privilege might also be inapplicable. Because Interbake has not presented a document-by-document privilege analysis of the reply e-mails or offered a specific reason why the e-mail string should be treated as a group, see In re Universal Serv. Fund Litig., 232 F.R.D. at 673, we conclude that the district court must assess the privilege claim with respect to each e mail in the string to determine whether Interbake has carried its burden, see Jones, 696 F.2d at 1072."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

Case Date Jurisdiction State Cite Checked
2011-01-01 Federal

Chapter: 55.504
Case Name: Rhoades Indus., Inc. v. Bldg. Materials Corp. of Am., 254 F.R.D. 238, 241 & n.5 (E.D. Pa. 2008)
("A situation may arise where a number of email messages, by themselves not privileged, but eventually sent to an attorney for the purpose of securing legal advice, become privileged. If they are not produced, they must be logged individually in order to claim the privilege, but they do not have to be detailed in the log entry describing the email message sent to the attorney. An email string may be analogous to a meeting that takes place in a conference room between attorney and client for the purpose of seeking legal advice. The facts discussed at the meeting must be disclosed in discovery, but the communications that take place at the meeting are privileged. As a result of the meeting, if the client prepares a letter to the attorney summarizing those communications, both the discussions at the meeting and the letter itself are clearly privileged. In the world of electronic communications, a series of email messages, among people employed by the client but working in different locations, can replace the meeting and subsequent letter. Some of the communications may not include copies to the attorney, but after the exchange of email messages among the client's employees, all contained within one email string, the last and most recent email, attaching all the prior emails, is then sent to the attorney with a request for legal advice based on the underlying email messages. If the purpose of the email string was to gather facts and communicate those facts to the attorney for legal advice, then a good argument exists that the email communications served the functional equivalent of a face-to-face meeting, and although the facts contained in the emails are discoverable, all of the messages, not only the compilation of messages sent to the attorney, are privileged. If that is the case, all of the separate email messages must be disclosed under Rule 26(b)(5), which is usually done by a privilege log. However, the client's log need not disclose that all of these emails were forwarded to the attorney.")

Case Date Jurisdiction State Cite Checked
2008-01-01 Federal PA B 8/13

Chapter: 55.602
Case Name: Dyson, Inc. v. Sharkninja Operating LLC, 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. April 5, 2017)
(rejecting plaintiffs' request for a Special Master; finding that defendant made predictable mistakes in withholding and logging documents, and would have to re-review its withholding and log entries; "[T]he Court orders SharkNinja to undertake additional review of all Weekly Updates it has withheld and produce those documents with more targeted redactions that mirror what the Court has allowed in this order. The Weekly Updates were regularly redacted too aggressively or improperly withheld. From the Court's review, this problem does indeed appear to be a systematic over-designation of the Weekly Updates based on attorneys being copied on the email. Therefore, the Court orders SharkNinja to review all Weekly Updates that it withheld and/or redacted to ensure that they have been appropriately withheld and/or redacted.")

Case Date Jurisdiction State Cite Checked
2017-04-05 Federal IL

Chapter: 55.701
Case Name: Foti v. City of Jamestown Board of Public Utilities, 10CV575A, 2014 U.S. Dist. LEXIS 108376 (W.D.N.Y. Aug. 5, 2014)
(finding that the work product protection covered documents prepared by the consultant defendant hired to help it comply with a consent order; "While the Court recognized that typically all documents created after the commencement of litigation would be created 'because of' that litigation, the Court rejected the defendant's argument that a privilege log was not needed because of the time lapse between the underlying incident and the commencement of litigation."; "While the Hacker Letter does not specifically refer to this litigation, it does discuss the overflow incidents in June and August of 2009 which underlie the plaintiffs' claims. . . . Thus, it appears likely that the Hacker Letter was created because of the instant litigation. Whether E&M would have been required to provide this information to the defendants in an essentially similar form absent the instant litigation is unclear based upon this record.")

Case Date Jurisdiction State Cite Checked
2014-08-05 Federal NY

Chapter: 55.701
Case Name: Koumoulis v. Indep. Fin. Mktg. Grp., Inc., No. 10-CV-0887 (PKC) (VMS), 2014 U.S. Dist. LEXIS 7695, at *20-21, *21 (E.D.N.Y. Jan. 21, 2014)
(not for publication) ("Defendants contend that Judge Scanlon 'committed clear error' by permitting Plaintiffs to submit a declaration, instead of a privilege log, documenting advice they received from their attorney about internal complaints and LPL's [defendant] investigation. . . . This contention is meritless."; "Judge Scanlon properly exercised her discretion to allow Plaintiffs to use a declaration to satisfy their disclosure obligation under FRCP 26(b)(5)(A). The rule does not prescribe any particular format for disclosing privilege claims.")

Case Date Jurisdiction State Cite Checked
2014-01-21 Federal NY B 6/14

Chapter: 55.701
Case Name: American Broadcasting Company v. Aereo, Inc., Nos. 12 Civ. 1540 & 1543 (AJN), 2013 U.S. Dist. LEXIS 5316, at *8-9 (S.D.N.Y Jan. 11, 2013)
("[T]he Court notes that they are presented with a number of options that -- separately or in combination -- could mitigate the burden of this request, including at least the following: (1) the submission of 'categorical' privilege logs pursuant to Local Rule 26.2 . . . , possibly to be followed by more particular itemization of documents in a subset of those categories; (2) exclusion from the privilege logs of documents created after the commencement of litigation relating to the technology at issue . . . ; (3) excluding from the privilege log purely internal communications among counsel and their agents; and (4) limiting the request to a subset of specific and identified technologies established through a meet-and-confer process."; ordering a meet-and-confer)

Case Date Jurisdiction State Cite Checked
2013-01-11 Federal NY B 6/13

Chapter: 55.702
Case Name: Khasin v. Hershey Co., Case No. 5:12-cv-01862-EJD-PSG, 2014 U.S. Dist. LEXIS 23886, at *12-13 (N.D. Cal. Feb. 21, 2014)
(finding that Hershey did not waive its privilege by producing an inadequate log, but ordering a new log; "These arguments, however, are based on an incorrect recitation of the requirements for a privilege log. Khasin cites an out of district case, which applied a paraphrased version of the Second Circuit's test for a sufficient privilege log. That test requires a greater degree of specificity than the one required by the Ninth Circuit." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 55.703
Case Name: Hully Enters. V. Baker Botts LLP, Misc. Case No. 17-1466 (BAH), 2017 U.S. Dist. LEXIS 203066 (D.D.C. Dec. 9, 2017)
(finding that it is not always necessary for a litigant to prepare a privilege log; ". . . when a discovery request demands production of an attorney's records in connection with representation of a client, invocation of the protections of the attorney-client privilege and work-product doctrine may be effective without requiring a detailed privilege log. Otherwise, any objection to the scope of a discovery demand would be rendered moot because interposing that objection would trigger the very burdensome obligation to prepare a privilege log that the objection would be intended to avoid. See Dell Inc. v. Decosta, 233 F. Supp. 3d 1, 3-4 (D.D.C. 2017) (concurring with defendants that document requests 'served on prior counsel' were 'overbroad and unduly burdensome' since compliance 'would impose an undue and disproportionate burden on Defendants to prepare a privilege log of the thousands of documents that Defendants could reasonably be expected to 'possess' after a decade of [client] representation but most of which would be protected by the attorney-client privilege or attorney work-product doctrine'); Prism Techs., LLC v. Adobe Sys., No. 8:10CV220, 2011 U.S. Dist. LEXIS 131321, at *10-13 (D. Neb. Nov. 14, 2011) (adopting 'assumption[]' used by other courts 'that limit[s] the necessity to create such 'privilege logs' of communications between a party and counsel in cases where attorney-client privilege is evident, particularly when the communications are voluminous') (citing United States v. Bouchard Transp., No. 08-CV-4490 (NGG) (ALC), 2010 U.S. Dist. LEXIS 37438, at *4 (E.D.N.Y. Apr. 14, 2010) ('[P]rivilege logs are commonly limited to documents created before the date litigation was initiated . . . . [I]n many situations, it can be assumed that all documents created after charges have been brought or a lawsuit has been filed and withheld on the grounds of privilege were created 'because of' that pending litigation.'); Ryan Inv. Corp. v. Pedregal De Cabo San Lucas, No. C 06-3219, 2009 U.S. Dist. LEXIS 118337, at *9 (N.D. Cal. Dec. 18, 2009) (denying plaintiff's motion to compel, explaining that 'counsel's communications with the client and work product developed once the litigation commences are presumptively privileged and need not be included on any privilege log")). The petitioners acknowledge the immense burden on respondents that would be triggered by the broad discovery demands for privileged and protected information and suggest only that the Court participate in narrowing the scope."; "In sum, simply because the Court agreed with respondents about the scope and sensitivity of the requested discovery, with its concomitant cost and burdens, and made a determination on the Application without requiring a privilege log.")


Case Date Jurisdiction State Cite Checked
2017-12-09 Federal DC
Comment:

key case


Chapter: 55.703
Case Name: Eshelman v. Puma Biotechnology, Inc., No. 7:16-CV-18-D, 2017 U.S. Dist. LEXIS 108328 (E.D.N.C. July 13, 2017)
("The parties in their Joint Discovery Plan agreed to the following exceptions to their obligation to produce a privilege log: have observed that, pursuant to Rule 29, the parties' stipulation should be followed so long as it does not run afoul of the local rules or the judge's preferences."; "'Privilege Logs. Except as ordered by the Court for good cause shown, the parties agree that they will not produce or prepare privilege logs with respect to: (a) documents prepared by the below counsel of record in this litigation in anticipation of this litigation; (b) emails or other communications exchanged with the below counsel of record in this litigation; or (c) documents or information withheld on the basis of an objection other than privilege or protection of the attorney work product doctrine.'")

Case Date Jurisdiction State Cite Checked
2017-07-13 Federal NC

Chapter: 55.703
Case Name: In re Ex parte Application of financialright GmbH, 17-mc-105 (DAB), 2017 U.S. Dist. LEXIS 107778 (S.D.N.Y. June 23, 2017)
(addressing plaintiffs' efforts to discover documents related to Jones Day's investigation into the "Volkswagen emissions scandal"; finding that attorney-client privilege and the work product doctrine protected documents related to the investigation, and that Jones Day did not waive either protection by disclosing protected documents to the government, pursuant to an agreement under which DOJ agreed to keep the documents confidential except if it decided in its "sole discretion" that it could disclose the documents to discharge its duties; "The Court next attempts to address whether attorney-client privilege applies to the document requests at issue here. In tension here are the fact that Applicants' request is beyond broad and that Jones Day's assertion of privilege is also all encompassing. Ordinarily, the party asserting privilege has the burden of proving that privilege. . . . However in this case, Applicants request practically a universe of documents, making it next to impossible for Jones Day to assert privilege with any particularity. At this time, it is impossible for the Court to determine whether particular communications are covered by attorney-client privilege. The Court does hold, however, that there is an attorney-client relationship between Volkswagen and Jones Day."; "Volkswagen retained Jones Day in anticipation of proceedings before United States authorities. Accordingly, the work-product doctrine may be applicable here. However, as with attorney-client privilege, the document requests and the assertions of privilege are both overly broad. To the extent that documents requested contain the mental impressions of Jones Day attorneys, they would be covered by the work-product document. Jones Day will need to assert more specifically such protection upon a narrowing of the document requests.")

Case Date Jurisdiction State Cite Checked
2017-06-23 Federal NY

Chapter: 55.703
Case Name: Waymo LLC, Plaintiff, v. Uber Technologies, Inc., No. C 17-00939 WHA, 2017 U.S. Dist. LEXIS 54662 (N.D. Cal. April 10, 2017)
(rejecting an effort by a former Waymo employee to avoid log requirements for any documents related to his alleged theft of Waymo material used to assist Uber; "The notice of motion stated that the motion sought to prohibit Uber 'from disclosing any information provided by Levandowski in the course of the [joint defense agreement], and specifically . . . information concerning the due diligence review conducted by a third party under that agreement, including but not limited to the identity of the third party who conducted any such due diligence review, whether Mr. Levandowski possessed any documents that were reviewed by the third party, and the identity of any of Mr. Levandowski's possessions that may have been reviewed.")

Case Date Jurisdiction State Cite Checked
2017-04-10 Federal CA

Chapter: 55.703
Case Name: Waymo LLC, Plaintiff, v. Uber Technologies, Inc., No. C 17-00939 WHA, 2017 U.S. Dist. LEXIS 54662 (N.D. Cal. April 10, 2017)
(rejecting an effort by a former Waymo employee to avoid log requirements for any documents related to his alleged theft of Waymo material used to assist Uber; "Levandowski's motion cites the California Rules of Professional Conduct and our Civil Local Rules for the general proposition that attorneys are ethically required to avoid disclosing a client's 'confidences' or 'secrets' -- 'unless an appropriate court order is obtained by the requesting party'. . . . The suggestion that the privilege log at issue here would violate defense counsel's ethical obligation to protect Levandowski's 'confidences' or 'secrets' is a non-starter because the expedited discovery order dated March 16 is an 'appropriate court order' that, according to Levandowski's own argument, supersedes generic countervailing ethical obligations.")

Case Date Jurisdiction State Cite Checked
2017-04-10 Federal CA

Chapter: 55.703
Case Name: Norton v. Town of Islip, County fo Suffolk, CV 04-3079 (PKC) (SIL), 2017 U.S. Dist. LEXIS 33977 (E.D.N.Y. March 9, 2017)
(holding that categorical privilege logs are sometimes acceptable, but not in the circumstances before the court; "The Court has thoroughly reviewed the Amended Privilege Log and its deficiencies are immediately glaring. To start, numerous entries fail to identify any date. . . . Moreover, the log does not identify the sender, recipient, or their respective titles, on certain documents. . . . Although the Court recognizes that a document may be privileged even if an attorney is not on the correspondence, nothing on the log indicates whether these documents were prepared for the purposes of obtaining legal advice or in anticipation of litigation, and thus there is no explanation as to why they should be considered privileged."; "The descriptions and subject matter of the documents provide no greater insight into whether the documents are privileged. Defendants list the subject matter of a majority of the documents as either 'Norton Litigation,' 'Law Enforcement,' 'Norton Article 78 Litigation,' and 'Litigation.' Although the Court does not doubt that they are about these topics in some way, the log fails to explain whether they were created for the purposes of obtaining legal advice, contain legal advice, sought out legal advice, or were prepared in anticipation of litigation. Other descriptions contain no reference to the litigation at all.")

Case Date Jurisdiction State Cite Checked
2017-03-09 Federal NY

Chapter: 55.703
Case Name: Norton v. Town of Islip, County fo Suffolk, CV 04-3079 (PKC) (SIL), 2017 U.S. Dist. LEXIS 33977 (E.D.N.Y. March 9, 2017)
(holding that categorical privilege logs are sometimes acceptable, but not in the circumstances before the court; "Defendants argue that a categorical log is sufficient for these withheld documents, submitting a three-page Categorical Privilege Log with their opposition. See Categorical Privilege Log. Both the Federal and Local Rules permit categorical privilege logs. See Auto. Club of N.Y., Inc. v. Port Auth. of N.Y. & New Jersey, 297 F.R.D. 55, 59 (S.D.N.Y. 2013) ('Fed.R.Civ.P. 26 applies with the same force to a categorical log as it does to a traditional log that lists each document individually.'); Local Civil Rule 26.2(c) (allowing parties to log documents categorically 'when asserting privilege on the same basis with respect to multiple documents'). Similar to the standard governing individualized logs, 'a categorical privilege log is adequate if it provides information about the nature of the withheld documents sufficient to enable the receiving party to make an intelligent determination about the validity of the assertion of the privilege.' Auto. Club of N.Y., Inc., 297 F.R.D. at 59; see also Orbit One Commc'ns, Inc. v. Numerex Corp., 255 F.R.D. 98, 109 (S.D.N.Y. 2008) (categorical privilege log must include information to 'justify its assertion of privilege with regard to each category, and the description of each category must provide sufficient information for [defendant] to assess any potential objections to the assertions of attorney-client privilege.'). In determining whether a categorical log is appropriate, Courts consider whether its justification is 'directly proportional to the number of documents withheld.' See Auto. Club of N.Y., Inc., 297 F.R.D. at 60; see, e.g., In re Imperial Corp. of Am., 174 F.R.D. 475, 478 (S.D. Cal. 1997) (allowing a categorical privilege log where the documents ranges in the 'hundreds of thousands, if not millions').")

Case Date Jurisdiction State Cite Checked
2017-03-09 Federal NY
Comment:

key case


Chapter: 55.703
Case Name: TCV VI, L.P. v. TradingScreen Inc., C.A. No. 10164-VCN, 2015 Del. Ch. LEXIS 245 (Del. Ch. Sept. 25, 2015)
("Because 'an improperly asserted claim of privilege is no claim of privilege at all,' a party that fails to adequately describe withheld documents might waive privilege for those documents. Court-ordered waiver, however, has been characterized as a 'harsh result' typically only justified 'in cases of the most egregious conduct by the party claiming the privilege.' Where the log's inadequacy does not cause prejudice or reflect bad faith, the court has discretion to fashion 'more remedial sanctions.'"; "Ordinarily, a party asserting privilege must produce both a privilege log and a redaction log absent mutual agreement that a less burdensome arrangement will suffice. The Plaintiffs in this matter present a fair alternative to preparing a redaction log: ordering senior Delaware counsel for the Defendants to review each redaction and certify that no redaction runs afoul of the scope of waiver set forth in this letter opinion."; "This meet-in-the-middle solution makes sense under these circumstances. There is no evidence of bad faith or deliberate obfuscation. . . . The task of logging each redaction may prove a laborious addition to an already-vast discovery effort, a fact of some significance given this Court's efficiency ideals and the presence of a less burdensome alternative proposed by the aggrieved party.").

Case Date Jurisdiction State Cite Checked
2015-09-25 State DE

Chapter: 55.703
Case Name: GE v. United States, No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562 (D. Conn. Sept. 15, 2015)
("GE contends that, although it cannot always identify a document's author and recipient, it is still possible to ascertain from the content of a document that it reflects the seeking of or rendering of legal or tax advice. Perhaps and even likely so. Indeed, the Government itself claims privilege for certain of its documents without identification of author and recipient. But as a categorical matter the claim of privilege remains more tenuous and uncertain in the absence of a link to a communication."; "For this reason, I conclude that it is appropriate for this discrete category of standalone documents that are altogether bereft of the required author and recipient designations to be subject to independent review by a special master to be appointed in accordance with Fed. R. Civ. P. 53.").

Case Date Jurisdiction State Cite Checked
2015-09-15 Federal CT

Chapter: 55.703
Case Name: Johnson v. Ford Motor Co., Case No.: 3:13-cv-06529, Case No.: 3:13-cv-14207, Case No. 3:13-cv-20976, 2015 U.S. Dist. LEXIS 124696 (S.D.W. Va. Sept. 11, 2015)
("Indeed, none of the cases cited by Ford addresses the circumstances before this Court. Although Ford makes a logical point that creating a privilege log for attorney-client communications in unrelated cases is burdensome, Ford again fails to provide any of the factual support necessary to succeed on a burdensomeness argument.").

Case Date Jurisdiction State Cite Checked
2015-09-11 Federal WV

Chapter: 55.703
Case Name: In re Kenneth Gordon Welsh, III v. Allen, Case No. 13-02457-8-DMW, Ch. 13, Adversary Proceeding No. 14-00004-8-DMW, 2015 Bankr. LEXIS 2447 (E.D.N.C. July 24, 2015)
("The Plaintiff is not required to detail each email communication between the Plaintiff and Plaintiff's counsel. The court will, however, require the Plaintiff to produce to Defendant a log or summary by month with a brief description of the number of communications exchanged and the parties to those communications from January 1, 2011 through June 17, 2015.")

Case Date Jurisdiction State Cite Checked
2015-07-24 Federal NC

Chapter: 55.703
Case Name: Charvat v. Valente, No. 12 CV 5746, 2015 U.S. Dist. LEXIS 25694 (N.D. Ill. March 3, 2015)
("[T]he privilege log need not include post-lawsuit communications that are only among attorneys or only between attorneys and a single client.")

Case Date Jurisdiction State Cite Checked
2015-03-03 Federal IL

Chapter: 55.703
Case Name: United States v. Memorial Health, Inc., 4:11-cv-58, 2014 U.S. Dist. LEXIS 156595 (S.D. Ga. Nov. 5, 2014)
(finding defendants' affidavits insufficient to justify privilege protection or allow defendants to retrieve one document claimed to be inadvertently produced out of 30,000 produced; analyzing the privilege protection issue for the inadvertently produced document; "Generally, a party meets its burden of asserting the attorney-client privilege 'when the party produces a detailed privilege log stating the basis of the claimed privilege for each document in question, together with an accompanying explanatory affidavit from counsel.'. . . To be sure, some courts have recognized that an affidavit alone may be sufficient to establish privilege.")

Case Date Jurisdiction State Cite Checked
2014-11-05 Federal GA

Chapter: 55.703
Case Name: Zorek v. CVS Caremark Corp., Civil No. 1:13-cv-1949, 2014 U.S. Dist. LEXIS 127742, at *7-8 (M.D. Pa. Sept. 11, 2014)
("As the Advisory Committee explains, allowing for non-waiver of privilege regardless of the degree of care exercised by the producing party can avoid potentially large costs of pre-production review. This is particularly true, for example, in litigation involving ESI and large amounts of documents. Where large amounts of data or documents are responsive but only a few of which may turn out to be useful, it is less costly in terms of time and labor to conduct privilege review after the relevant documents have been identified. . . . In this case, large amounts of documents are not involved. As Plaintiff points out, 'the number[] of documents produced by [Defendant] will be measured in the thousands of pages, not in terabytes of data.' Hence, the efficiency rationale of forgoing pre-production review does not apply. And to the extent that Defendant's proposed clawback provision would shift the burden of privilege review to the receiving party, inefficiency would result since presumably the producing party is better positioned to identify which documents are privileged. For similar reasons, under Defendant's proposal, needless uncertainty would obtain: the receiving party could never be sure which documents might be later subject to a claim of privilege.")

Case Date Jurisdiction State Cite Checked
2014-09-11 Federal PA

Chapter: 55.703
Case Name: Manufacturers Collection Co. LLC v. Precision Airmotive, LLC, No. 3:12-cv-853-L, 2014 U.S. Dist. LEXIS 77522, *12 (N.D. Tex. June 6, 2014
(holding that a category privilege log was acceptable; quoting the party's affidavit: "Because of the volume of privileged and protected communications and documents that were generated during this ten (10) year timeframe, among other factors, it is unduly burdensome, unreasonable and overly time consuming for AVCO to provide details concerning time, persons, and general subject matter as to every individual document.")

Case Date Jurisdiction State Cite Checked
2014-06-06 Federal TX

Chapter: 55.703
Case Name: Williams v. Bridgeport Music, Inc., 14 Misc. 73-P1, 2014 U.S. Dist. 62056 (S.D.N.Y. May 5, 2014)
(finding federal rules protecting the identity of nontestifying experts; "Plaintiffs' objection over the substance of the privilege log also does not compel a finding of waiver. Discovery from Ferrara is not permitted under Rule 26(b)(4)(D). This has been sufficient in the past to deny a finding of waiver even when a privilege log was not produced. . . . Plaintiffs contend that the privilege log is incomplete as it does not list emails received by Ferrara. . . . Yet the relevant factors cuts against a finding of waiver, as a privilege log was produced and Rule 26(b)(4)(D) protects all facts known or opinions by a non-testifying consulting expert. . . . Not requiring a party to prepare an extensive privilege log for such experts would promote efficient litigation and expeditious discovery, while a contrary holding would allow parties to play games during discovery with consulting experts. Given such considerations, the substance of the privilege log was not sufficiently inadequate for a finding of waiver.")

Case Date Jurisdiction State Cite Checked
2014-05-05 Federal NY

Chapter: 55.703
Case Name: FDIC v. Fid. & Deposit Co. of Md., No. 3:11-cv-19-RLY-WGH, 2013 U.S. Dist. LEXIS 77702, at *20 (S.D. Ind. June 3, 2013)
("The court is mindful that when privilege is asserted, privilege logs must be itemized so that the privilege claim may be evaluated on a document-by-document basis. . . . Nonetheless, it agrees with FDIC that individually logging and listing the 12,000 electronic documents is unduly burdensome and unlikely to yield additional information as to whether the documents are protected. . . . Since FDIC has the burden to establish privilege, the court construes any ambiguities and draws all inferences in favor of disclosure.")

Case Date Jurisdiction State Cite Checked
2013-06-03 Federal IN B 4/14

Chapter: 55.703
Case Name: Vasudevan Software, Inc. v. IBM, No. C09-05897 RS (HRL), 2010 U.S. Dist. LEXIS 100835 (N.D. Cal. Sept. 14, 2010)
("IBM notes that VSi's language limiting the communications and attorney work product to 'counsel-of-record' cuts out support staff, and therefore creates an undue burden on all parties who will have to make this distinction. The Court agrees that there is no real reason for this distinction, and so the language of the privilege log provision should include communications between any attorneys, including support staff and vendors, and the party clients that are related to this litigation."; "The parties are directed to submit a stipulated protective order that contains the following: 'a re-drafted privilege log provision that makes clear that privileged communications between any attorneys (including all support staff and vendors) and party clients that are related to this litigation or attorney work product, regardless of the date made or created need not be included on the parties' privilege logs.'")

Case Date Jurisdiction State Cite Checked
2010-09-14 Federal CA

Chapter: 55.703
Case Name: MCC Mgmt. of Naples, Inc. v. Arnold & Porter LLP, Case Nos. 2:07-cv-387- & -420-FtM-29DNF, 2010 U.S. Dist. LEXIS 65040, at *4 (M.D. Fla. June 17, 2010)
(finding that defendant could rely on a category-based rather than a document-by-document log; "Plaintiffs assert that defendants must submit a document-by-document privilege log. Defendants respond that the documents at issue are so voluminous that creation of a document-by-document log would be unduly burdensome."; "The Court agrees with defendants. The Advisory Committee Notes to rule 26 explain that: 'The rule does not attempt to define for each case what information must be provided when a party asserts a claim of privilege or work product protection. Details concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected.' FED. R. CIV. P. 26(b)(5) advisory committee's notes (1993)."; "Here, the documents at issue include defendants' internal communications over the course of a fourteen year period. The sheer number of documents likely produced during this period render a document-by-document log unduly burdensome and unnecessary. Accordingly, defendants' category-based log is sufficient.")

Case Date Jurisdiction State Cite Checked
2010-06-17 Federal FL B 7/16
Comment:

key case


Chapter: 55.703
Case Name: Ryan Investment Corp. v. Pedregal De Cabo San Lucas, No. C 06-3219 JW (RS), 2009 U.S. Dist. LEXIS 118337 (N.D. Cal. Dec. 18, 2009)
("Defendants next contend that three of plaintiff's requests for production (7, 8, and 15) seek materials that are privileged under the attorney-client privilege and the work product doctrine. Defendants have not, however, produced a log detailing any materials being withheld on such privilege grounds."; "As noted at the hearing, counsel's communications with the client and work product developed once the litigation commences are presumptively privileged and need not be included on any privilege log.")

Case Date Jurisdiction State Cite Checked
2009-12-18 Federal CA

Chapter: 55.703
Case Name: Schanfield v. Sojitz Corporation of America, 07 Civ. 9716 (CM) (JCF), 2009 U.S. Dist. LEXIS 17354
("The defendants also argue that the plaintiff must provide a log accounting for some 1,200 documents withheld on grounds of erelevance. . . . The Federal Rules of Civil Procedure do not require a log of non-responsive or irrelevant documents, nor have I ordered the plaintiff to create such a log.")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal

Chapter: 55.703
Case Name: Tafas v. Dudas, 530 F. Supp. 2d 786, 802 (E.D. Va. 2008)
("Before Tafas can demand that the USPTO produce a privilege log substantiating any claims of privilege, he must first show that documents that belong in the administrative record are missing. See Blue Ocean Inst. [v. Gutierrez], 503 F. Supp. 2d [366,] 371-72 [(D.D.C. 2007)]. Because Tafas failed to make this showing, the USPTO was not required to produce a privilege log, and Magistrate Judge Jones did not commit legal error by failing to order the production of one. The Court will thus deny Tafas's objection to this portion of Magistrate Judge Jones's decision.")

Case Date Jurisdiction State Cite Checked
2008-01-01 Federal VA B 3/16

Chapter: 55.703
Case Name: Grossman v. Schwarz, 125 F.R.D. 376, 386 (S.D.N.Y. 1989)
("'Documents received during the pendency of this lawsuit by any defendant from counsel are protected by the attorney client privilege and the attorney work product privilege. Documents prepared for counsel by any defendant during the pendency of this lawsuit are protected by attorney client privilege. Such documents are so clearly covered by the privileges and are so numerous that they have not been indexed." (internal citation omitted))

Case Date Jurisdiction State Cite Checked
1989-01-01 Federal NY

Chapter: 55.704
Case Name: FDIC v. Crowe Horwath LLP, No. 17 CV 04384, 2018 U.S. Dist. LEXIS 105880 (N.D. Ill. June 25, 2018)
(describing the bank examination privilege, and allowing a categorical log for documents withheld under that privilege; "But sometimes deciding a privilege dispute does not require the make-work of a document-by-document privilege log, so long as asserting categories of documents subject to the privilege is clear enough. See Manufacturers Collection Co., LLC v. Precision Airmotive, LLC, 2014 U.S. Dist. LEXIS 77522, 2014 WL 2558888, at *3 (N.D. Tex. June 6, 2014) (holding a document-by-document listing to be unduly burdensome and of no material benefit where party was asserting the work-product, attorney-client, and joint-deference privileges); Vasudevan Software, Inc. v. Microstrategy Inc., 2012 U.S. Dist. LEXIS 163654, 2012 WL 5637611, at *7 (N.D. Cal. Nov. 15, 2012) (allowing party asserting attorney-client and work-product privileges over requested communications between it and its counsel to 'provide categorical logs, essentially grouping documents by type and indicating how each of those categories is privileged'); Orbit One Commc'ns, Inc. v. Numerex Corp., 255 F.R.D. 98, 109 (S.D.N.Y. 2008) (allowing a categorical rather than itemized privilege log, but requiring the producing party to 'justify its assertion of privilege with regard to each category, and the description of each category must provide sufficient information for [the compelling party] to assess any potential objections to the assertions of attorney-client privilege.'); S.E.C. v. Thrasher, 1996 U.S. Dist. LEXIS 3327, 1996 WL 125661, at *1-2 (S.D.N.Y. Mar. 20, 1996) (holding a categorical privilege log to be sufficient when the party moving to compel sought 'production of all communications between defense counsel concerning the lawsuit [because] on its face this demand seeks wholesale production of documents ordinarily covered" by several privileges).")

Case Date Jurisdiction State Cite Checked
2018-06-25 Federal IL
Comment:

key case


Chapter: 55.704
Case Name: Durling v. Papa John's Int'l, Inc., 16 Civ. 3592 (CS) (JCM), 2018 U.S. Dist. LEXIS 11584 (S.D.N.Y. Jan. 24, 2018)
(finding that a client agent/consultant analyzed the appropriate reimbursement for delivery drivers was not the function equivalent of a Papa John's employee, and was outside privilege protection; also finding that the work product doctrine did not protect documents created by the agent/consultant because it was not motivated by litigation; "Plaintiffs also object to PJI's [Papa John's] claims of privilege over entire e-mail strings. . . . Plaintiffs argue that, where an email string contains individual non-privileged e-mails, PJI should have redacted the discrete privileged portions, as opposed to withholding the string entirely. . . . PJI asserts that it 'reviewed the most inclusive e-mail strings that it collected and claimed privilege if the string included confidential communications with an attorney.'. . . PJI further asserts that the review and redaction suggested by Plaintiffs would be unduly burdensome, 'as it would require PJI to review and potentially redact 1,630 individual email messages currently included in 1,064 logged email threads.'"; "The Court acknowledges PJI's argument that some non-privileged, responsive e-mails that were incorporated into privileged strings were already produced to the extent the "string existed in a non-privileged form (i.e., before an attorney was involved).'. . . However, the strength of that argument depends on, among other things, the breadth and completeness of PJI's initial document collection. There is a risk that categorically withholding all privileged strings in their entirety will deprive Plaintiffs of information to which they are entitled, especially where, as here, PJI's in-house attorneys were closely involved in the relevant decision-making and the relevant discussions involved both legal and business components. PJI has not adequately demonstrated that, under the circumstances, reviewing and redacting the strings at issue would be unduly burdensome. Therefore, PJI 'may not withhold the entirety of a conversation merely because one portion of such communication is subject to privilege.' Instead, PJI must 'selectively redact the document in question' and produce any non-privileged portions, unless those portions are all plainly non-responsive and irrelevant.")

Case Date Jurisdiction State Cite Checked
2018-01-24 Federal NY

Chapter: 55.704
Case Name: Norton v. Town of Islip, County fo Suffolk, CV 04-3079 (PKC) (SIL), 2017 U.S. Dist. LEXIS 33977 (E.D.N.Y. March 9, 2017)
(holding that categorical privilege logs are sometimes acceptable, but not in the circumstances before the court; "Defendants argue that a categorical log is sufficient for these withheld documents, submitting a three-page Categorical Privilege Log with their opposition. See Categorical Privilege Log. Both the Federal and Local Rules permit categorical privilege logs. See Auto. Club of N.Y., Inc. v. Port Auth. of N.Y. & New Jersey, 297 F.R.D. 55, 59 (S.D.N.Y. 2013) ('Fed.R.Civ.P. 26 applies with the same force to a categorical log as it does to a traditional log that lists each document individually.'); Local Civil Rule 26.2(c) (allowing parties to log documents categorically 'when asserting privilege on the same basis with respect to multiple documents'). Similar to the standard governing individualized logs, 'a categorical privilege log is adequate if it provides information about the nature of the withheld documents sufficient to enable the receiving party to make an intelligent determination about the validity of the assertion of the privilege.' Auto. Club of N.Y., Inc., 297 F.R.D. at 59; see also Orbit One Commc'ns, Inc. v. Numerex Corp., 255 F.R.D. 98, 109 (S.D.N.Y. 2008) (categorical privilege log must include information to 'justify its assertion of privilege with regard to each category, and the description of each category must provide sufficient information for [defendant] to assess any potential objections to the assertions of attorney-client privilege.'). In determining whether a categorical log is appropriate, Courts consider whether its justification is 'directly proportional to the number of documents withheld.' See Auto. Club of N.Y., Inc., 297 F.R.D. at 60; see, e.g., In re Imperial Corp. of Am., 174 F.R.D. 475, 478 (S.D. Cal. 1997) (allowing a categorical privilege log where the documents ranges in the 'hundreds of thousands, if not millions').")

Case Date Jurisdiction State Cite Checked
2017-03-09 Federal NY
Comment:

key case


Chapter: 55.704
Case Name: Norton v. Town of Islip, County fo Suffolk, CV 04-3079 (PKC) (SIL), 2017 U.S. Dist. LEXIS 33977 (E.D.N.Y. March 9, 2017)
(holding that categorical privilege logs are sometimes acceptable, but not in the circumstances before the court; "The Court has thoroughly reviewed the Amended Privilege Log and its deficiencies are immediately glaring. To start, numerous entries fail to identify any date. . . . Moreover, the log does not identify the sender, recipient, or their respective titles, on certain documents. . . . Although the Court recognizes that a document may be privileged even if an attorney is not on the correspondence, nothing on the log indicates whether these documents were prepared for the purposes of obtaining legal advice or in anticipation of litigation, and thus there is no explanation as to why they should be considered privileged."; "The descriptions and subject matter of the documents provide no greater insight into whether the documents are privileged. Defendants list the subject matter of a majority of the documents as either 'Norton Litigation,' 'Law Enforcement,' 'Norton Article 78 Litigation,' and 'Litigation.' Although the Court does not doubt that they are about these topics in some way, the log fails to explain whether they were created for the purposes of obtaining legal advice, contain legal advice, sought out legal advice, or were prepared in anticipation of litigation. Other descriptions contain no reference to the litigation at all.")

Case Date Jurisdiction State Cite Checked
2017-03-09 Federal NY

Chapter: 55.704
Case Name: Asghari-Kamrani v. United Svcs. Automobile Assoc., Civ. A. No. 2:15cv478, 2016 U.S. Dist. LEXIS 191666 (E.D. Va. Oct. 21, 2016)
(finding that a categorical log was acceptable; "In the instant matter, the log provides information regarding the date ranges of the communications, the format of the communications ('Document Type'), the attorneys and clients who sent and/or received the communications ('Sender(s)/Recipient(s)/Copyees'), description of the type of information included in each category ('Category Description'), the privilege asserted ('Privilege'), and the number of documents in each category. The Plaintiffs' log does not identify who, of the attorneys and clients named within each category, created each document, or what specific date each document was created within the range identified. It merely identifies the attorneys and clients who sent and/or received the documents, one of which is assumedly the author of each document. In providing the description of the type of information included in each category, Plaintiffs disclose information concerning the nature of the legal advice or attorney work product, as each category description describes '[c]ommunications with outside counsel [or patent agent] providing, requesting, or reflecting legal advice regarding . . . ' ECF No. 199 attach. 4 at 1-5. Although the information in the log is somewhat sparse, Interbake Food [N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011)] teaches that the log need not be overly detailed, it merely must provide the requesting party with sufficient information to be able to assess the privilege claim. The category descriptions provide the Defendants an opportunity to assess the privilege asserted, as they explain whether the communication was with outside counsel or an outside patent agent, as well as whether the communication involved post-grant review of the patent, litigation of the patent, negotiation of a nondisclosure agreement, licensing of the patent, prosecution of the patents, or maintenance fees."; "No District Court within the Fourth Circuit has enunciated a specific test to determine if a categorical privilege log is sufficient. Outside of the Fourth Circuit, the Southern District of New York expressed that 'the courts retain some discretion to permit less detailed disclosure in appropriate cases.' Securities Exchange Commission v. Thrasher, 1996 WL 125661, at *1 (S.D.N.Y. Mar. 20. 1996). The Court there laid out a test that 'the court may permit the holder of withheld documents to provide summaries of the documents by category' when '(a) a document-by-document listing would be unduly burdensome and (b) the additional information to be gleaned from a more detailed log would be of no material benefit to the discovering party in assessing whether the privilege claim is well-grounded.' Id."; "Although no district court within the Fourth Circuit has utilized the Thrasher test, it has been adopted in primarily unpublished opinions by district courts within the Second. Fifth, Sixth, Ninth. Tenth. Eleventh, and DC Circuits. See, e.g., Rosen v. Provident Life and Accident Ins. Co., 308 F.R.D. 670, 680 (N.D. Ala. 2015); U.S. S.E.C. v. LovesLines Overseas Management. Ltd., No. 04-302, 2007 WL 581909, at *1 n.5 (D.D.C. Feb. 21, 2007); McNamee v. Clemens, No. 09cv1647, 2014 WL 1682025. at *2 (E.D.N.Y. April 28, 2014); Manufacturers Collection Company, LLC v. Precision Airmotive, LLC, No. 3:12cv853, 2014 WL 2558888. at *2-3 (N.D. Tex. June 6, 2014); Securities and Exchange Commission v. Somers, No. 3:11cv165, 2013 WL 4045295. at *2 n.2 (W.D. Ky. Aug. 8, 2013); Games2U, Inc. v. Game Truck Licensing, LLC, No. MC-13-53, 2013 WL 4046655. at *7 (D. Ariz. Aug. 9, 2013); PostX Corp. v. Secure Data Motion, No. C 02-04483, 2004 WL 2623234. at *1 (N.D. Cal. June 9, 2004); Securities and Exchange Commission v. Nacchio, No. 05cv480, 2007 WL 219966, at *9 (D. Colo. Jan. 25. 2007).")

Case Date Jurisdiction State Cite Checked
2016-10-21 Federal VA
Comment:

key case


Chapter: 55.704
Case Name: First Horizon National Corp. v. Houston Casualty Co., No. 2:15-cv-2235-SHL-dkv, 2016 U.S. Dist. LEXIS 142332 (W.D. Tenn. Oct. 5, 2016)
(ordering plaintiff to prepare a document-by-document log rather than a categorical log; "Courts have allowed categorical logging when a document-by-document log would be unduly burdensome or when 'the additional information to be gleaned from a more detailed log would be of no material benefit to the discovering party in assessing whether the privilege claim is well grounded." S.E.C. v. Thrasher, No. 92 CIV. 6987 (JFK), 1996 U.S. Dist. LEXIS 3327, 1996 WL 125661, at *1 (S.D.N.Y. Mar. 20, 1996)."; "First Horizon Nat'l Corp. v. Certain Underwriters at Lloyd's, No. 211CV02608SHMDKV, 2013 U.S. Dist. LEXIS 189959, 2013 WL 11090763 (W.D. Tenn. Feb. 27, 2013)."; "Here, the Plaintiffs seek to categorially log all documents, not just those created after the filing of this complaint on April 9, 2015. Unlike documents created after the filing of the complaint, which are at best marginally probative, documents created prior to April 9, 2015 are relevant to the instant litigation. With respect to these documents, the Plaintiffs have not shown that they would bear an undue burden in creating a standard privilege log and the Defendants have shown that a document-by-document log would be of material benefit."; "'The Defendants concede that the Plaintiffs may categorically log documents created after April 9, 2015.'"; "[T]he Defendants have shown that a document-by-document log would be of material benefit to them in assessing whether the privilege claim is well grounded. The documents listed in the nine categories may not involve lawyers or may involve lawyers but contain non-privileged communications of fact. . . . Here, for instance, it is unclear why First Tennessee asserts work-product protection for documents going back to 2010 when the DOJ began its investigation in 2012. . . . Or, the documents listed in the nine categories may fall within an exception to the asserted privilege. As this court has previously noted, Tennessee recognizes the 'sword and shield,' 'offensive use,' and 'at issue' exceptions to the attorney-client privilege and work-product protection. . . . As to the 'at issue' exception, where timely notice is a condition precedent to coverage, this exception provides that the insured waives any privilege or protection for documents that could 'establish[] when it was reasonably on notice of potential liability and thus obliged to notify its insurer.'. . . Without a document-by-document log, the Defendants cannot analyze which documents in First Tennessee's privilege log might fall within this or other exceptions."; "In sum, in the absence of a document-by-document log, the court or the Defendants cannot assess whether the privilege claim is well grounded. For these reasons, the Defendants' motion to compel production of a document-by-document privilege log is granted.")

Case Date Jurisdiction State Cite Checked
2016-10-05 Federal TN

Chapter: 55.704
Case Name: In re Engle Cases, Case No. 3:09-cv-10000-J-WGY-JBT, 2016 U.S. Dist. LEXIS 16667, at *27 (M.D. Fla. Feb. 10, 2016)
(ordering disclosure of withheld documents to a Special Master; concluding that the compelled disclosure did not trigger a waiver; also permitting the category log; "[T]he Special Master's requirement that Counsel submit a privilege log is not unduly burdensome. The Special Master does not require Counsel to identify every individual item subject to a claimed privilege; rather, the Special Master requests only that Counsel identify '(1) the categories of Privileged Information; (2) the privilege or protection asserted; and (3) a brief explanation of the basis for the assertion.'" (internal citation omitted))

Case Date Jurisdiction State Cite Checked
2016-02-10 Federal FL B 8/16

Chapter: 55.704
Case Name: In re Kenneth Gordon Welsh, III v. Allen, Case No. 13-02457-8-DMW, Ch. 13, Adversary Proceeding No. 14-00004-8-DMW, 2015 Bankr. LEXIS 2447 (E.D.N.C. July 24, 2015)
("The Plaintiff is not required to detail each email communication between the Plaintiff and Plaintiff's counsel. The court will, however, require the Plaintiff to produce to Defendant a log or summary by month with a brief description of the number of communications exchanged and the parties to those communications from January 1, 2011 through June 17, 2015.")

Case Date Jurisdiction State Cite Checked
2015-07-24 Federal NC

Chapter: 55.704
Case Name: Neelon v. Blair Krueger, Civ. A. No. 12-cv-11198-IT, 2015 U.S. Dist. LEXIS 29146 (D. Mass. March 10, 2015)
(finding that a category log was not adequate in the circumstances of the case; "Although a categorical log may be allowable if thorough review is still possible, the log Plaintiff produced here was inadequate."; "Plaintiff's log -- which grouped documents by relationship or overall transaction -- does not contain such detail, making it difficult for Defendants or the court to test the applicability of the asserted privilege as to each document sought to be withheld.")

Case Date Jurisdiction State Cite Checked
2015-03-10 Federal MA

Chapter: 55.704
Case Name: Manufacturers Collection Co. LLC v. Precision Airmotive, LLC, No. 3:12-cv-853-L, 2014 U.S. Dist. LEXIS 77522, *15-16 (N.D. Tex. June 6, 2014)
(holding that a category privilege log was acceptable; "Finally, the amended privilege log must break out each type of claimed protection -- including work-product protection, attorney-client privilege, joint-defense privilege, joint-prosecution privilege, allied-litigant privilege, and common legal interest -- into separate rows as to each category of withheld documents. This will involve unavoidable duplication. But this further breakdown of each category should also assist Precision's in assessing whether a challenge may be necessary to a particular category of document.")

Case Date Jurisdiction State Cite Checked
2014-06-06 Federal TX

Chapter: 55.704
Case Name: Manufacturers Collection Co. LLC v. Precision Airmotive, LLC, No. 3:12-cv-853-L, 2014 U.S. Dist. LEXIS 77522, *15 (N.D. Tex. June 6, 2014)
(holding that a category privilege log was acceptable; "[T]he Court will require AVCO to further breakdown the categories into subcategories providing more information on the subject matter of the documents -- specifically, breaking down each category by date range and type of authors and recipients (as the log presently does) but also by whether the withheld documents (1) relate to the Pridgen settlement and settlement discussions, (2) relate to any assignments, or (3) relate to other aspects of the Pridgen litigation. And, as to each of these more particularized categories, Precision must provide the quantity of documents or communications being withheld.")

Case Date Jurisdiction State Cite Checked
2014-06-06 Federal TX

Chapter: 55.704
Case Name: Safety Dynamics Inc. v. Gen. Star Indem. Co., No. CV-09-00695-TUC-CKJ (DTF), 2014 U.S. Dist. LEXIS 9045, at *6, *7, *12-13, *12 n.3 (D. Ariz. Jan. 24, 2014)
(finding that a litigant claiming good faith as a defense to a bad faith claim did not trigger an at issue waiver under Hearn (Hearn v. Rhay, 68 F.R.D. 574 (1975)); "While Defendant raised an affirmative defense of good faith in response to the claim of bad faith brought by Plaintiff, the mere filing of a bad faith action or the affirmative claim of good faith do not by themselves constitute an implied waiver of the attorney client privilege."; "While Mr. Fanelli's deposition testimony indicates that he sought the advice of counsel during the claims process, the fact that he conferred with counsel about an issue arising in an ongoing litigation does not waive the privilege. . . . The mere fact that a litigant confers with counsel and takes actions based on counsel's advice does not waive the attorney client privilege."; "This Court disagrees with Magistrate Judge Ferraro's conclusion that Defendant does not have to produce a privilege log unless its non-privilege based objections are unfounded. . . . This Court has not identified any authority in the Ninth Circuit that creates an exception to this rule for parties that raise multiple objections in addition to privilege to a single request for documents."; "'Defendants argues that since it objected to the scope of some discovery requests, it should not be required to log all privileged documents that may fall within the objectionable scope of the request. However, in situations where it may be unduly burdensome to specifically identify each privileged document, due to the amount of documents claimed to be privileged, a party may identify privileged documents by categories as long as it's still consistent with federal law.'")

Case Date Jurisdiction State Cite Checked
2014-01-24 Federal AZ B 6/14

Chapter: 55.704
Case Name: Mastr Adjustable Rate Mortgs. Trust 2006-OA2 v. UBS Real Estate Sec. Inc., No. 12 Civ. 7322 (HB) (JCF), 2013 U.S. Dist. LEXIS 130606, at *7 (S.D.N.Y. Sept. 12, 2013)
(in an opinion by Magistrate Judge James Francis, analyzing privilege log issues; "I further credited UBS' argument that creating a document-by-document privilege log would be an excessive burden, and therefore allowed the defendant to provide a categorical log.")

Case Date Jurisdiction State Cite Checked
2013-09-12 Federal NY B 4/14

Chapter: 55.704
Case Name: Games2U, Inc. v. Game Truck Licensing, LLC, No. MC-13-00053-PHX-GMS, 2013 U.S. Dist. LEXIS 114907, at *17-18, *18-19, *19-20 (D. Ariz. Aug. 9, 2013)
(holding that a category log was sufficient; "Through the combination of these two declarations, Etherton [non-party] provides G2U and the Court with specific categories of documents in her 'client file,' a general description of the subject matter and nature of those documents, and the attorney, client, and/or representatives who received or sent the documents. This description of the documents provides G2U and the Court with information sufficient to evaluate her claim of privilege."; "A 'document-by-document listing' is not warranted in the context of G2U's subpoena on Etherton. The categorical approach contained in her privilege log is sufficient."; "Like communications between defense counsel, the documents maintained by an attorney used in the context of patent prosecution are ordinarily privileged. Therefore, a more detailed privilege log is not necessary to determine which documents are protected. Etherton will not be required to individually log and identify every document in her client file as that would be unduly burdensome in response to the 'wholesale production' requested by G2U.")

Case Date Jurisdiction State Cite Checked
2013-08-09 Federal AZ B 4/14

Chapter: 55.704
Case Name: Assured Guar. Mun. Corp. v. UBS Real Estate Sec. Inc., Nos. 12 Civ. 1579 & 7322 (HB) (JCF), 2013 U.S. Dist. LEXIS 41785, at *29 (S.D.N.Y. Mar. 25, 2013)
(allowing a categorical privilege log; "UBS proposes developing a protocol to identify samples of privileged documents and to generate a categorical privilege log rather than a document-by-document log. . . . UBS asserts that 'logging every single privileged e-mail, e-mail attachment and hard copy document created or received by these custodians would impose an enormous burden and expense upon UBS.'" (internal citation omitted))

Case Date Jurisdiction State Cite Checked
2013-03-25 Federal NY B 3/14

Chapter: 55.704
Case Name: Assured Guar. Mun. Corp. v. UBS Real Estate Sec. Inc., Nos. 12 Civ. 1579 & 7322 (HB) (JCF), 2013 U.S. Dist. LEXIS 41785, at *30-31 (S.D.N.Y. Mar. 25, 2013)
(allowing a categorical privilege log; "Therefore, UBS's motion to identify privileged documents by category is granted. It shall produce a privilege log of documents protected by work product and attorney-client privilege consistent with this opinion. Should there arise a dispute regarding categorization of documents, the parties may submit them for in camera review, and I may order the documents to be recategorized. Moreover, if the producing party mischaracterizes a document, I may find waiver or shift the costs and attorneys' fees incurred by the party seeking such review to the extent deemed appropriate.")

Case Date Jurisdiction State Cite Checked
2013-03-25 Federal NY B 3/14

Chapter: 55.704
Case Name: American Broadcasting Company v. Aereo, Inc., Nos. 12 Civ. 1540 & 1543 (AJN), 2013 U.S. Dist. LEXIS 5316, at *8-9 (S.D.N.Y Jan. 11, 2013)
("[T]he Court notes that they are presented with a number of options that -- separately or in combination -- could mitigate the burden of this request, including at least the following: (1) the submission of 'categorical' privilege logs pursuant to Local Rule 26.2 . . . , possibly to be followed by more particular itemization of documents in a subset of those categories; (2) exclusion from the privilege logs of documents created after the commencement of litigation relating to the technology at issue . . . ; (3) excluding from the privilege log purely internal communications among counsel and their agents; and (4) limiting the request to a subset of specific and identified technologies established through a meet-and-confer process."; ordering a meet-and-confer)

Case Date Jurisdiction State Cite Checked
2013-01-11 Federal NY B 6/13

Chapter: 55.704
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 638 (D. Nev. 2013)
("Other district courts in this circuit have adopted this view. For example, In re Imperial Corp. of America, 174 F.R.D. 475 (S.D. Cal. 1997), involved the productions of hundreds of thousands, if not millions of documents, and the court found the creation of a privilege log containing a document by document listing would be overly burdensome and was not required by Rule 26(b)(5)."; "In this case, where the volume of documents is unquestionably large, the court concludes Bard's privilege logs, which identify much of the information outlined in In re Grand Jury Investigation [, 974 F.2d 1068 (9th Cir. 1992)]] and Dole v. Milonas [, 889 F.2d 885 (9th Cir. 1989)], satisfy the requirements of Federal Rule of Civil Procedure 26(b)(5).")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NV B 3/14

Chapter: 55.704
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 642 (D. Nev. 2013)
("[T]he court is not inclined at this juncture to order the reproduction of all of the e-mails in this document production in separate format or to require separate itemization in the privilege log. This conclusion is in accord with the court's finding in Dawe [Dawe v. Corr. USA, 263 F.R.D. 613 (E.D. Cal. 2009)] that Rule 26(b)(5)(A) does not require separate itemization of e-mails in a privilege log. . . . However, this does not mean the e-mails that were part of an e-mail chain that are not privileged in and of themselves should not have been produced if they existed separately assuming they are otherwise relevant and responsive.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NV B 3/14

Chapter: 55.704
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013, at *3-4 (S.D. Ohio Nov. 13, 2012)
("Subsequent to defendants' production of the revised privilege log, the Court ordered defendants to produce a pared down and reorganized privilege log, excluding duplicate entries. . . . Defendants were directed to reorganize the log under two broad categories of documents that defendants assert are protected by: (1) the settlement privilege; and (2) the attorney-client privilege and/or work product doctrine. Within these broad categories, defendants were directed to divide the documents into sub-categories, with the documents for which defendants assert a settlement privilege to be organized into six sub-categories: (1) draft letters; (2) general communications; (3) Notice of Violation (NOV) presentations, including spreadsheets and graphs; (4) 'root cause' write-ups; (5) report/study/technical (not related to an audit); and (6) general. Documents that defendants assert are privileged under the attorney client privilege or work product doctrine were to be organized into the following five categories: (1) draft letters; (2) general communications; (3) compliance-related audits; (4) 'litigation'/2008 URS audits and updates; and (5) documents relating to the instant litigation (Graff litigation documents).")

Case Date Jurisdiction State Cite Checked
2012-11-13 Federal OH B 7/13

Chapter: 55.704
Case Name: MCC Mgmt. of Naples, Inc. v. Arnold & Porter LLP, Case Nos. 2:07-cv-387- & -420-FtM-29DNF, 2010 U.S. Dist. LEXIS 65040, at *4 (M.D. Fla. June 17, 2010)
(finding that defendant could rely on a category-based rather than a document-by-document log; "Plaintiffs assert that defendants must submit a document-by-document privilege log. Defendants respond that the documents at issue are so voluminous that creation of a document-by-document log would be unduly burdensome."; "The Court agrees with defendants. The Advisory Committee Notes to rule 26 explain that: 'The rule does not attempt to define for each case what information must be provided when a party asserts a claim of privilege or work product protection. Details concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected.' FED. R. CIV. P. 26(b)(5) advisory committee's notes (1993)."; "Here, the documents at issue include defendants' internal communications over the course of a fourteen year period. The sheer number of documents likely produced during this period render a document-by-document log unduly burdensome and unnecessary. Accordingly, defendants' category-based log is sufficient.")

Case Date Jurisdiction State Cite Checked
2010-06-17 Federal FL B 7/16
Comment:

key case


Chapter: 55.704
Case Name: SEC v. Thrasher, No. 92 Civ. 6987 (JFK), 1996 U.S. Dist. LEXIS 3327, at *3-4 (S.D.N.Y. Mar. 19, 1996)
("In this case the Commission seeks production of all communications between defense counsel concerning the lawsuit. On its face this demand seeks wholesale production of documents that are ordinarily covered by the work-product rule, and, if the joint-defense principle is applicable, very probably by the attorney-client privilege. Moreover, defendant represents without dispute that the files in question are extremely voluminous and plausibly asserts that a document-by-document listing would be a long and fairly expensive project for counsel to undertake. In addition, defendant suggests that disclosure of the pattern of his attorney's consultations with other counsel might reveal some aspects of his litigation strategy. . . . For reasons noted, the stated position of the Commission cannot be sustained. In the absence of any articulated showing of need, it cannot justify its demand for such a detailed log with respect to this category of documents.")

Case Date Jurisdiction State Cite Checked
1996-03-19 Federal NY B 6/13

Chapter: 55.705
Case Name: Genesco, Inc. v. Visa U.S.A., Inc., 296 F.R.D. 559, 581, 582, 582 n.5, 584, 584-85 (M.D. Tenn. 2014)
(holding that the attorney-client privilege and the work product doctrine protected communications relating to a forensic expert's investigation into a cyberattack in Genesco's computer network; also concluding a non-testifying expert's disclosure did not waive the expert's protection; "Genesco next asserts the attorney client and work product privileges to bar Visa's discovery requests for Sisson's [Genesco's General Counsel] deposition and his records and communications during his investigation of the cyberattack and Visa's assessments and fines. Attorneys' factual investigations 'fall comfortably within the protection of the attorney-client privilege.'. . . This privilege extends to the Stroz firm [outside consultant who assisted inside counsel and outside counsel Kilpatrick Townsend & Stockton in investigating a cyberattack on Genesco's computer system] that assisted counsel in his investigation."; "For most actions, this Court requires a privilege log, but a study of the history of law reflects that most rules eventually give rise to exceptions where the facts warrant. Moreover, Rule 26(b)(4)(D) does not require a privilege log, only information that 'describes the nature of the documents, communications, or tangible things not produced or disclosed -- and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.' Rule 26(b)(5)(A)(ii) also does not require a privilege log."; "'Moreover, to disclose the details for a privilege log of documents exchanged between Sisson and Stroz would infringe upon Genesco's counsel and his consultant's mental processes that are entitled to absolute protection in this Circuit. . . . Thus, to require a privilege log for the assertion of these privileges for Genesco's counsel and his agent, the Stroz firm, would itself violate the work product privilege.'"; "These privileges arise from the relationship between Genesco and the Stroz firm for which Genesco's affidavits are appropriate and sufficient to enable the Court to decide whether the privilege attaches."; "This Court and other courts require a privilege log for most cases, but here given the international scope of this controversy and the circumstances of the retention of a consultant computer expert to assist Genesco's counsel in a complex computer investigation, this action fits squarely within Upjohn [Upjohn Co. v. United States, 449 U.S. 383 (1981)]. Given that this controversy involves Genesco's retail establishments through the world, the individual listing of each document to Genesco's counsel for determining privilege seems impracticable and unnecessary to decide this privilege issue in light of Upjohn. The Court, however, will require a privilege log for any document that was prepared by a Genesco employee, but was not addressed directly to Genesco's counsel as such factual circumstances fall outside of Upjohn. Genesco also cannot withhold documents prepared in its ordinary business, as reflected by the Court's ruling that remedial measures that Genesco took in response to Trustwave's report must be produced because the Trustwave [outside forensic investigator of cyber attack] report reflects that those measures were undertaken in the ordinary course of business, not for Genesco's counsel."; "Based upon Precision of New Hampton [Precision of New Hampton. Inc. v. Tri Component Prods. Corp., No. C12-2020, 2013 U.S. Dist. LEXIS 79847 (N.D. Iowa June 5, 2013)], the Court concludes that there is not any waiver of the attorney client privilege. Assuming a waiver based upon disclosure of the Stroz report, the limitation on the nontestifying expert consultant would still bar the Stroz discovery,as that protection arises under Rule 26(b)(4)(D) that serves different purposes and does not permit of waiver. Precision of New Hampton. Inc., 2013 U.S. Dist. LEXIS 79847, 2013 WL 2444047, at *3 ('where a party enjoys protection under Rule 26(b)(4)(D), the protection is not subject to waiver.').")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal TN B 6/14

Chapter: 55.706
Case Name: Concerned Citizens for Educ. Excellence v. Richmond Sch. Bd., 43 Va. Cir. 209, 211 (Va. Cir. Ct. 1997)
("The court is further inclined to deny the petitioners' motion for a log of attorney work product documents. What the petitioners propose would defeat the purpose behind the court's exemption of those papers. The doctrine of attorney work product serves to shield from an adverse party the fruits of an attorney's labor in representing his client. A log of these documents revealing their nature would protect their contents no more than a court order to produce them would. The attorney-client relationship is the most fundamental one in the legal profession. This court will not be a party to any violation of the sanctity of that relationship and, consequently, will not grant the petitioners' motion.")

Case Date Jurisdiction State Cite Checked
1997-01-01 State VA B 3/16

Chapter: 55.801
Case Name: Jo Ann Howard & Assoc., P.C. v. Cassity, Case No. 4:09CV01252 ERW, 2014 U.S. Dist. LEXIS 167761 (E.D. Mo. Dec. 3, 2014)
(after an in camera review describing privilege holdings using repetitive boilerplate descriptions withholdings)

Case Date Jurisdiction State Cite Checked
2014-12-03 Federal MO

Chapter: 55.802
Case Name: Nucap Industries Inc. v. Robert Bosch LLC, No. 15 CV 2207, 2017 U.S. Dist. LEXIS 135288 (N.D. Ill. Aug. 23, 2017)
("Before addressing the crux of Bosch's motion, the court notes that the privilege log included with Nucap's in camera submission describes nearly every one of the hundreds of documents listed therein using the same generic descriptor: 'Communication reflecting legal advice regarding anticipated litigation with Bosch.'. . . In the course of the court's limited in camera review of Nucap's documents, this boilerplate characterization was at times inaccurate and generally unhelpful in guiding the court's review. . . . In addition to revising its document production in accordance with this decision, Nucap is ordered to revise its privilege log to meet the requirements of Rule 26(b)(5). The parties are admonished that to the extent the court is required to resolve additional discovery disputes relating to privilege, it will rely on the parties' privilege logs to determine whether privilege claims should be upheld.")

Case Date Jurisdiction State Cite Checked
2017-08-23 Federal IL

Chapter: 55.802
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 7965 (5th Cir. App. May 4, 2017)
("Here, BDO's privilege log does not provide sufficient detail to meet its burden of allowing opposing counsel or the trial court to determine whether entries merely described as 'legal advice,' or that included or courtesy copied attorneys, actually contained privileged legal advice. . . . Furthermore, not only does the log include conclusory descriptions of 'legal advice,' it does so in the context of communications with in-house counsel -- an area courts have acknowledged presents unique challenges when it comes to establishing attorney-client privilege."; "The privilege log's lack of description, coupled with Bower's sworn declaration that many of the communications described as 'legal advice' were not made for the purpose of seeking and imparting legal advice, compels the conclusion that the log entries warranted closer scrutiny than the trial court provided. The district court therefore erred when it determined, on the showing made, that these entries sufficed to prove BDO's prima facie case of privilege.")

Case Date Jurisdiction State Cite Checked
2017-05-04 Federal

Chapter: 55.802
Case Name: In re Oxbow Carbon LLC Unitholder Litig., Consol. C.A. No. 12447-VCL, 2017 Del. Ch. LEXIS 43 (Ch. Ct. Del. March 13, 2017)
(analyzing the privilege implications of a company's disclosure of an investigation, including surveillance video tapes; "The items on the privilege log relating to Elroy also lack sufficient descriptions of their content. Every entry concerning him contains one of five generic descriptions: 'prepared in anticipation of litigation regarding' along with one of (1) 'employee expenses,' (2) 'employee work performance,' (3) 'funds spent in connection with the Boston office,' (4) 'employee practices' or (5) travel policies."; "For one, these are 'rote and redundant' privilege justifications that are insufficient under Delaware law.")

Case Date Jurisdiction State Cite Checked
2017-03-13 State DE

Chapter: 55.802
Case Name: Johnson v. Ford Motor Co., Case No.: 3:13-cv-06529, Case No. 3:13-cv-14207, Case No.: 3:13-cv-20976, 2015 U.S. Dist. LEXIS 115425 (S.D.W. Va. Aug. 28, 2015)
(ordering a supplemental log, because the defendant used boilerplate log language; "Ford uses the same two document descriptions throughout the entire log, and those descriptions are essentially synonymous. More importantly, the descriptions are nothing more than conclusory statements as to the privileged nature of the documents. Contrary to Ford's position, more factual detail certainly could have been provided to describe the withheld documents without disclosing privileged information, as is evidenced by Ford's responsive brief wherein Ford explains the ASO investigation and ongoing litigation occurring at the time that the documents were created. . . . Certain file names, such as the example listed above or 'DI_UA.xls,' 'Appendix 1 Ford.pdf,' 'Appendix 14 Toyota.pdf,' 'Mar. 1.xls,' and 'Charts.xls,' are incomprehensible and shed no light on Ford's claim that an analysis subject to protection from discovery is contained within those files. . . . Indeed, Mr. Ott, who was questioned about logged documents that were attributed to him, was at a loss as to which of the documents he created were referenced by the privilege log. . . . When the author of a document cannot recognize it from the information provided in a privilege log, the only conclusion is that the log is inadequate and does not fulfill its purpose.")

Case Date Jurisdiction State Cite Checked
2015-08-28 Federal WV

Chapter: 55.802
Case Name: United States v. von Biberstein, No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139 (E.D.N.C. March 25, 2015)
(holding that defendant's insufficient log and repeated failures to adequately describe withheld documents waived the privilege; ordering the withheld documents produced; "In the log, respondent claims two separate documents are privileged -- a purchase and sale agreement and an operating agreement. The privilege log, however, is of little help to the Court. It lacks the dates of the documents that are allegedly privileged. More problematically, it merely restates the boilerplate language directly from the Hawkins [Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 1998)] test for privilege without giving the Court any way to ascertain whether, in fact, the documents are privileged. For example, an 'agreement' typically contemplates the existence of a third party, which would destroy attorney-client privilege. Here, however, respondent argues not that the agreements themselves are privileged, but that information contained in the documents was provided for securing legal advice. Respondent does not explain, for example, what type of legal advice he was retained to provide or who the parties to the agreement were. Without further context, the Court cannot determine whether the documents themselves are privileged and is constrained to construe the privilege narrowly.")

Case Date Jurisdiction State Cite Checked
2015-03-25 Federal NC

Chapter: 55.802
Case Name: In re Berks Behavioral Health, LLC, Ch. 11 Bankruptcy No. 10-10290 SR, ADV. No. 10-00163 SR, 2014 Bankr. LEXIS 2438, at *11, *12-13 (E.D. Pa. May 28, 2014)
(concluding that the plaintiff debtor had rewritten a privilege log to make the documents sound privileged, but that the log entries did not match the documents; "Once the relevance challenge and the privilege claim were rejected, BBH simply rewrote the log descriptions of the 130 withheld documents so as to characterize each as relevant to the litigation as opposed to the bankruptcy main case. The typical amendment to the log adds to the preexisting description of 'bankruptcy strategy' a phrase such as 'including attorney analysis of claims and evidence in Adversary Proceeding litigation' or 'including attorney mental impressions regarding Adversary Proceeding.' . . . . Each change is to take a description which appears to be inelevant [sic] to the litigation and to rewrite it to make it of particular relevance to the litigation. . . . It should be noted that the Court has reached this conclusion just by comparing the two privilege logs. To reiterate, it did not possess at an earlier time -- as it does now -- copies of the documents being withheld. What the Court has found upon reviewing the withheld documents in camera is, to put it mildly, troubling. Most of the documents in it are highly relevant to the litigation. Indeed, the Court is at a total loss as to how BBH could possibly have previously characterized them as irrelevant. Either BBH has sought to withhold certain documents by engaging in a discovery 'shell game' of changing defenses and privileges when it suits their purposes4 or their counsel simply did not properly review the contents of the actual documents in the first instance. While the Court cannot conclusively know counsel's thinking in this regard, the error is so transparent and obvious as to paradoxically render the possibility that this was done by design seem highly unlikely. At a minimum, however, the record would support a finding that counsel could not possibly have properly reviewed these documents at all until after the October 21 ruling. Such dereliction constitutes a violation of the Court's discovery ruling.")

Case Date Jurisdiction State Cite Checked
2014-05-28 Federal PA

Chapter: 55.802
Case Name: Owens v. Stifel, Nicolaus & Co., Civ. A. No. 7:12-CV-144 (HL), 2013 U.S. Dist. LEXIS 171913 (M.D. Ga. Dec. 6, 2013)
(using boiler plate language in analyzing privilege and work product issues)

Case Date Jurisdiction State Cite Checked
2013-12-06 Federal GA B 5/14

Chapter: 55.802
Case Name: Chevron Corp. v. Weinberg Grp., 286 F.R.D. 95, 101 (D.D.C. 2012)
("I know that this opinion has made clear how tired I am of mechanically produced boilerplate privilege logs. I expect specific and clear claims of privilege as to each redaction made. I will hold counsel to their 26(g) obligations ruthlessly, and, at a minimum, hold that the privilege is waived whenever the obligations I am imposing are disobeyed.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 55.802
Case Name: Chevron Corp. v. Weinberg Grp., 286 F.R.D. 95, 99 (D.D.C. 2012)
("This raises the term 'boilerplate' to an art form, resulting in the modern privilege log being as expensive to produce as it is useless.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 55.803
Case Name: Heartland Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 U.S. Dist. LEXIS 124654 (S.D. Ind. July 25, 2018)
("Plaintiffs contend the descriptions suggest purely business discussions, rather than legal advice, and point to three descriptions as examples: 'Discussion between DineEquity employees, their agents, and their counsel re: waiting for fully executed trademark license agreement and supplier services agreement before beginning to source from Domino.'; 'Discussion between DineEquity employees, their agents, and their counsel re: impact of existing supplier services agreement with Domino on sweetener product transition, related trademark license agreement between DineEquity and Domino, and Domino indemnification.'; 'Discussion between DineEquity employees, their agents, and their counsel re: negotiation of trademark license agreement [with respect to] specific marks covered and description of products.'"; "The Court struggles to comprehend what information is supposedly lacking. . . . The Court will not require disclosure simply because the Defendants did not add "the legal impacts of" to each description.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal IN

Chapter: 55.803
Case Name: Firefighters' Retirement System v. Citco Group Ltd., Civ. A. No. 13-373-SDD-EWD, 2018 U.S. Dist. LEXIS 85697 (M.D. La. May 22, 2018)
(analyzing privilege choice of law issues, and ultimately concluding that UBS was inside privilege protection as a client consultant, although citing Kovel, because UBS's assistance was "indispensable" to the provision of legal advice (citing and quoting other cases); "[T]he privilege log setting out withheld UBS Documents contains descriptions that meet the Citco Defendants' burden of establishing that UBS was involved in these communications with the primary purpose of obtaining or facilitating the rendition of legal advice. The descriptions of the communications include 'email discussing intent to request legal advice from counsel (N. Braham) re: Project Rainier draft disclosure agreement for UBS,' 'email chain from counsel reflecting legal advice re: summary of key legal terms in Richcourt bids,' ''email from counsel reflecting legal advice re: draft share purchase agreement for Richcourt sale,' 'email chain with counsel providing legal advice and requesting information in order to provide legal advice re: non-compete provisions in Project Rainier share purchase agreement,' and 'email chain with counsel reflecting and requesting legal advice re: Project Rainier financial regulatory issues.' Plaintiffs do not point to any particular entry on the privilege log describing withheld UBS Documents which they assert is deficient.")

Case Date Jurisdiction State Cite Checked
2018-05-22 Federal LA

Chapter: 55.803
Case Name: Judicial Watch, Inc. v. United States Dep't of Housing & Urban Dev., Civ. A. No. 12-1785 (ESH), 2014 U.S. Dist. LEXIS 25882, at *18, *19-20 (D.D.C. Feb. 28, 2014)
(finding the Government's privilege log was adequate, even though it did not identify which protection the government relied upon; "[P]laintiff argues that defendant has failed to discharge its duty under FOIA because it 'solely . . . used general 'buzz words' to justify its withholding.'. . . Among the terms about which plaintiff complains are: 'possible litigation,' 'brief to be filed,' 'draft brief,' 'internal deliberation,' 'suggested revisions,' 'conveying research,' 'discussing and weighing approaches,' and 'draft internal talking points.'" (internal citation omitted); "An example from defendant's Vaughn index is instructive. In its justification for withholding document 253, the defendant writes, '[t]his document is an email chain in which attorneys are discussing and weighing approaches to take in possible forthcoming litigation.'. . . This entry uses two of the phrases identified by plaintiff as 'buzz words.' However, these phrases provide the Court with the very details necessary to analyze which, if any, of the relevant privileges are implicated by this document. This description demonstrates the presence of both the attorney work product privilege and the attorney-client privilege and therefore the specific 'approaches' being discussed as well as the particular 'possible . . . litigation' cannot be disclosed. To require HUD to provide further detail would in effect allow the Vaughn index requirements to swallow the very privileges Exemption 5 is designed to protect.")

Case Date Jurisdiction State Cite Checked
2014-02-28 Federal DC B 8/14

Chapter: 55.803
Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at *10 (D.D.C. Dec. 23, 2013)
(analyzing the waiver impact of an insured seeking recovery of attorneys fees he spent in an earlier litigation; approving the insured's privilege log including the following entry: "'Email from Fulbright attorneys to client re: status of Underlying Action, including discovery conference with Magistrate Judge Kay, settlement proposal, depositions, and remaining fact discovery, attaching 1/22/11 letter to Judge Kay and 1/24/11 order re: discovery issues. WP re: Underlying Action.'" (internal citation omitted))

Case Date Jurisdiction State Cite Checked
2013-12-23 Federal DC B 5/14

Chapter: 55.803
Case Name: Feld v. Fireman's Fund Ins. Co., Civ. A. No. 12-1789 (JDB), 2013 U.S. Dist. LEXIS 179538, at *9-10 (D.D.C. Dec. 23, 2013)
(analyzing the waiver impact of an insured seeking recovery of attorneys fees he spent in an earlier litigation; approving the insured's privilege log including the following entry: "'Email from Fulbright attorneys to client attaching for review draft litigation budget requested by FFIC, describing process used to create same and rates FFIC 'willing to pay.' WP in anticipation of potential litigation with FFIC.'" (internal citaition omitted))

Case Date Jurisdiction State Cite Checked
2013-12-23 Federal DC B 5/14

Chapter: 55.803
Case Name: Ferguson v. United of Omaha Life Ins. Co., Civ. Case No. ELH-12-1035, 2012 U.S. Dist. LEXIS 179182, at *9 (D. Md. Dec. 18, 2012)
(holding that the party challenging the privilege claim had the burden of showing application of the fiduciary exception; "United of Omaha's privilege log denotes the date of creation, includes the authors and recipients, and asserts the attorney-client privilege and attorney work product protection. The privilege log also states that the disputed documents constitute 'Legal Review' sent by 'Dana Washington/In-house Counsel' in response to requests by a claims analyst and an appeals analyst. . . . This Court is satisfied that United of Omaha has met its burden of demonstrating that the attorney-client privilege applies.")

Case Date Jurisdiction State Cite Checked
2012-12-18 Federal MD B 9/13

Chapter: 55.803
Case Name: In re McDowell, 483 B.R. 472, 483 (Bankr. S.D. Tex. 2012)
(finding the following log description satisfactory: "'Client Information Worksheet Utilized To Prepare Statements, Schedules and Statement Of Financial Affairs. Prepared prepetition by one or both of the Debtors and contains notes written by counsel for the Debtors during follow-up consultation and final preparation of Schedules. Exact date of preparation is unknown, other than it was prepared prior to the filing of the Debtors' petition.'")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal TX

Chapter: 55.803
Case Name: In re McDowell, 483 B.R. 472, 483-84 (Bankr. S.D. Tex. 2012))
(finding the following log description satisfactory: "'Copy of original Schedule F for case 12-31231 with hand written notes for most creditors and some comments on amounts. Comments and notes written by one of the Debtors. The document was 'marked up' by the Debtor(s) at the request of the Debtor's counsel for the purpose of discussion. The document was prepared approximately June 10, 2012.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal TX B 7/13

Chapter: 55.803
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("Entry No. 1844 describes the document as: 'draft customer letter in anticipation of litigation drafted with assistance from Bruce McPheeters.' Obviously, the entry could have been more carefully worded. However, the description is enough to permit assessment of the claim of privilege and to support it.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 55.803
Case Name: Rein v. United States Patent & Trademark Office, 553 F.3d 353, 376, 376 n.33 (4th Cir. 2009)
("We find that Fawcett's ["the USPTO's FOIA Officer"] declaration, coupled with the Vaughn index descriptions, support the Agencies' claim of attorney-client privilege for the challenged documents. Descriptions of the documents withheld or redacted pursuant to the attorney-client privilege, for example, include: 'Employee (attorney) discussion about the potential for a lawsuit by RIM regarding the time it took to perform the reexamination made in anticipation of litigation' . . . ; 'Internal Agency discussion between Agency Solicitors and Examiners regarding proposed Agency action on pending re-examination' . . .; 'Employee discussion regarding merger of a proceeding.' . . .; 'Attorney-client communication in the form of legal advice provided by the General Counsel and an Associate Solicitor to drafters of Agency response were redacted. Also redacted were comments made by Agency employees concerning proposed content of letter.'")

Case Date Jurisdiction State Cite Checked
2009-01-01 Federal

Chapter: 55.804
Case Name: Hopkins v. Board of County Commissioners of Wilson County, Kansas, Case No. 15-cv-2072-CM-TJJ, 2018 U.S. Dist. LEXIS 122356 (D. Kansas July 23, 2018)
("A review of ACH's original privilege log produced on April 30, 2018 reveals that the log only contains general descriptions of categories of documents being withheld, e.g., '[s]ummaries of interviews with ACH or ACH employees prepared by undersigned counsel or undersigned counsel's employees.'")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal KS

Chapter: 55.804
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 23067 (5th Cir. Nov. 16, 2017)
(analyzing an investigation into BDO's former chief human resource officer's Title VII lawsuit; "[C]ourts have stated that simply describing a lawyer's advice as 'legal,' without more, is conclusory and insufficient to carry out the proponent's burden of establishing attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2017-11-16 Federal

Chapter: 55.804
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SNC), 2017 U.S. Dist. LEXIS 176102 (S.D.N.Y. Oct. 24, 2017)
("Despite these valid privilege claims, however, the Fifth Log's description of Document 713 is incredibly vague. It simply states that this document was a 'communication reflecting . . . counsel's thoughts and strategy regarding patent strategy." In addition, the description does not identify Moeller as the source of the legal advice, nor does it mention Yumoto, the only member of YKK's legal department involved in the communication. Without any reference to a specific member of the legal department, it was impossible for Plaintiffs to assess whether Defendants' claim of privilege was valid. Defendants waived their privilege claim by failing to comply with Rule 26 and Local Civil Rule 26.2.")

Case Date Jurisdiction State Cite Checked
2017-10-24 Federal NY

Chapter: 55.804
Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("Accordingly, descriptions such as 'letter re claim,' 'analysis of claim,' or 'report in anticipation of litigation' -- with which we have grown all too familiar -- will be insufficient.'. . . Fluidmaster's privilege log does not meet these standards with respect to the work product doctrine. Again, unless Fluidmaster can address these deficiencies, the documents must be produced to Plaintiffs.")

Case Date Jurisdiction State Cite Checked
2016-11-08 Federal IL

Chapter: 55.804
Case Name: Johnson v. Serenity Transportation, Inc., Case No. 15-cv-02004-JSC, 2016 U.S. Dist. LEXIS 149867 (N.D. Cal. Oct. 28, 2016)
("[T]hat privilege log is patently inadequate as it does not contain enough information to permit Plaintiff or the Court to evaluate whether the privilege applies. Instead, the log states that all three emails are 'protected by the attorney-client privilege and attorney work product protections[,]' includes dates (where applicable) and names -- which may be the sender and recipient, but that is not clear either -- and no further information. . . . There is no indication of the content of the emails or whether either the sender or recipient is an attorney. (Id.)"; "The Court declines Plaintiff's invitation to find waiver here, where the dispute appears to turn on an insufficient log regarding only three documents and where it appears that the parties have not yet met and conferred on this issue, contrary to the requirements of the Court's Standing Order. Instead, the Court ORDERS SCI to produce an adequate privilege log by November 4, 2016 for every responsive document withheld on privilege grounds.")

Case Date Jurisdiction State Cite Checked
2016-10-28 Federal CA

Chapter: 55.804
Case Name: United States v. Louisiana, Civ. A. No. 11-470-JWD-RLB, 2015 U.S. Dist. LEXIS 100238 (M.D. La. July 31, 2015)
("Most of the remaining entries are too vague to even discern the subject matter of the items, much less their relation to this case or the applicability of any privilege -- e.g., 'Training Alert!!,' 'RE: FYI' and 'Questions.'")

Case Date Jurisdiction State Cite Checked
2015-07-31 Federal LA

Chapter: 55.804
Case Name: Spear v. Fenkell, Civ. A. No. 13-02391, 2015 U.S. Dist. LEXIS 79648 (E.D. Pa. June 19, 2015)
("Several other entries indicate consultation on 'corporate matters,' 'corporate transaction,' or 'compensation matters.'. . . These descriptions do not convey the information necessary to make a decision about whether a privilege applies.")

Case Date Jurisdiction State Cite Checked
2015-06-19 Federal PA

Chapter: 55.804
Case Name: Anderson v. Branch Banking and Trust Co, Case No. 13-CV-62381-BLOOM/VALLE, 2015 U.S. Dist. LEXIS 63312 (S.D. Fla. May 14, 2015)
(finding that plaintiffs could revise an insufficient privilege log; "In this case, Plaintiffs' revised privilege log does not provide sufficient information for Defendant -- let alone this Court -- to assess their newly-asserted claim that the Rappaport documents are privileged attorney-client communications. . . . For instance, Plaintiffs claim that the document labeled P-64266 is an attorney-client privileged email sent by Rappaport to Frederick Taylor on September 20, 2011 'regarding draft letter to Russel Wright, Center Stage.'. . . A second example is the document labeled P-64375, which Plaintiffs claim is a privileged email sent by Rappaport to Taylor on October 27, 2011 'regarding conversation with Chuck Taylor.'. . . A third example is the document labeled P-64457, which Plaintiffs claim is a privileged email sent by Rappaport to Taylor on February 7, 2011 'regarding letter to Troy Bank.'"; "'[T]he Court is reluctant to pursue such a draconian course, in spite of its superficial appeal.'")

Case Date Jurisdiction State Cite Checked
2015-05-14 Federal FL

Chapter: 55.804
Case Name: Apple Inc. v. Samsung Electronics Co., Ltd., Case No.: 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386 (N.D. Cal. April 3, 2015)
(analyzing the effect of Samsung's defense of admitted disclosure of confidential information about non-party Nokia; "Samsung's privilege log provides only generic statements such as 'email reflecting legal advice regarding licensing, prepared at the direction of counsel in anticipation of litigation.' 'A vague declaration that states only that the document 'reflects' an attorney's advice is insufficient to demonstrate that the document should be found privileged.' Also unclear in the log is why Samsung produced some documents listed on the privilege log in redacted form -- albeit with little more revealed than what was provided by the log -- while entirely withholding others that include information that need not be redacted. For some documents, the privilege log does not make clear an attorney was involved. . . . It was in light of complaints from both Apple and Nokia about the sufficiency of these statements and Samsung's urging that the legal purpose of the documents was 'facially obvious' that the court granted in camera review.")

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal CA
Comment:

key case


Chapter: 55.804
Case Name: Carolina Casualty Ins. Co. v. Oahu Air Conditioning Service, Inc., No. 2:13-cv-1378 WBS AC, 2015 U.S. Dist. LEXIS 40786 (E.D. Cal. March 30, 2015)
(analyzing a situation in which an insurance company settled a claim against its insured after a hazard waste spill, and then sues the three companies which are allegedly responsible for packing the hazard waste; "Other entries contain information that may be meaningful to plaintiff, but mean nothing to the court, and therefore make it impossible for the court to determine whether a protection or privilege exists. For example, some entries are described as relating to 'California Biennial Report.' While the court could use external sources to research what this is, it will not rely on such sources to do the work that plaintiff should have done. Plaintiff's privilege log must give enough information for the court to determine whether a protection or privilege exists, in the event PCS renews its motion to compel.")

Case Date Jurisdiction State Cite Checked
2015-03-30 Federal CA

Chapter: 55.804
Case Name: In re McDonald, Case No. 13-10663C-7G, Case No. 13-10664C-7G, Jointly Administered in Case No. 13-10661, 2014 Bankr. LEXIS 3780, at *13-14 (M.D.N.C. Sept. 3, 2014)
("Except as hereinafter noted, the information in the privilege logs regarding the contents of the withheld documents is so limited that it is virtually meaningless in determining the nature of the document, including whether the document was requesting or providing legal advice. The purported description of the contents of the various documents consists of entries such as 'invoices', 'foreclosure deed', 'annual report', 'operating agreement', 'cover page', 'signature page', 'NCDENR', 'gift tax return', 'loan documents', 'Secretary of State form', 'trust info', 'schedule meeting', 'discuss potential investment', 'conference call', 'PFS', 'list of addressees', 'cover letter', 'message', 'Notes on Dates', 'Release of Security', 'Financial Restructuring', 'Settlement Agreement', 'Alpha Bankruptcy', 'scheduling' and other one or two word entries that are similarly uninformative. Such vague and uninformative document descriptions do not satisfy Rule 26(b) (5) (A) (ii) and are insufficient to establish the applicability of the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-09-03 Federal NC

Chapter: 55.804
Case Name: In re Berks Behavioral Health, LLC, Ch. 11 Bankruptcy No. 10-10290 SR, ADV. No. 10-00163 SR, 2014 Bankr. LEXIS 2438, at *11, *12-13 (E.D. Pa. May 28, 2014)
(concluding that the plaintiff debtor had rewritten a privilege log to make the documents sound privileged, but that the log entries did not match the documents; "Once the relevance challenge and the privilege claim were rejected, BBH simply rewrote the log descriptions of the 130 withheld documents so as to characterize each as relevant to the litigation as opposed to the bankruptcy main case. The typical amendment to the log adds to the preexisting description of 'bankruptcy strategy' a phrase such as 'including attorney analysis of claims and evidence in Adversary Proceeding litigation' or 'including attorney mental impressions regarding Adversary Proceeding.' . . . . Each change is to take a description which appears to be inelevant [sic] to the litigation and to rewrite it to make it of particular relevance to the litigation. . . . It should be noted that the Court has reached this conclusion just by comparing the two privilege logs. To reiterate, it did not possess at an earlier time -- as it does now -- copies of the documents being withheld. What the Court has found upon reviewing the withheld documents in camera is, to put it mildly, troubling. Most of the documents in it are highly relevant to the litigation. Indeed, the Court is at a total loss as to how BBH could possibly have previously characterized them as irrelevant. Either BBH has sought to withhold certain documents by engaging in a discovery 'shell game' of changing defenses and privileges when it suits their purposes4 or their counsel simply did not properly review the contents of the actual documents in the first instance. While the Court cannot conclusively know counsel's thinking in this regard, the error is so transparent and obvious as to paradoxically render the possibility that this was done by design seem highly unlikely. At a minimum, however, the record would support a finding that counsel could not possibly have properly reviewed these documents at all until after the October 21 ruling. Such dereliction constitutes a violation of the Court's discovery ruling.")

Case Date Jurisdiction State Cite Checked
2014-05-28 Federal PA

Chapter: 55.804
Case Name: D'Andre v. Priester, No. 13 C 4117, 2014 U.S. Dist. LEXIS 50880 (N.D. Ill. April 14, 2014)
("That leaves a few documents that the subpoena respondents claim are covered only by the work product doctrine. The first of these are described as 'file folder labels.' That description falls far short of one that enables a court or a party to assess whether the item qualifies as work product. . . . It may well be that folders were labeled as a part of the preparation for litigation in this instance, probate but it seems highly unlikely that the labels qualify as the type of materials the doctrine is intended to protect from discovery. Courts have variously described such materials as reflecting an attorneys' mental processes in evaluating communications with their client . . . . The description 'File Folder Labels' simply does not cut it.")

Case Date Jurisdiction State Cite Checked
2014-04-14 Federal IL

Chapter: 55.804
Case Name: McNamee v. Clemens, 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 46338 (E.D.N.Y. April 2, 2014)
(finding that defendant Roger Clemens' late and inadequate log resulted in a waiver; "For example, Hendricks in Camera Bates Nos. 00163-00165 is described simply as 'Re: Hi Joe'")

Case Date Jurisdiction State Cite Checked
2014-04-02 Federal NY

Chapter: 55.804
Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK) (JCF), 2013 U.S. Dist. LEXIS 113050, at *9 (S.D.N.Y. Aug. 9, 2013)
("Mr. Donziger's privilege log does not meet these standards. It is rife with vague descriptions, such as 'Email concerning litigation status and strategy,' 'Email concerning litigation status and strategy re Lago Agrio litigation,' 'Email concerning litigation status and strategy re Donziger 1782,' and 'Email concerning draft memo.'. . . These entries and similar ones give little guidance to the plaintiff as to whether a privilege is properly asserted. The insufficiency is particularly problematic in this case, given the applicability of the crime-fraud exception.")

Case Date Jurisdiction State Cite Checked
2013-08-09 Federal NY B 4/14

Chapter: 55.804
Case Name: Lowe's Home Ctrs., Inc. v. THF Clarksburg Dev. Two, L.L.C., Civ. A. No. 1:12 cv 72, 2013 U.S. Dist. LEXIS 96978, at *5-6 (N.D. W. Va. July 11, 2013)
(ordering defendant to supplement an incomplete log within seven days; "The Court agrees with Lowe's that the privilege log does not comply with the requirements of the Federal Rules or the Local Rules. First, and possibly most importantly, the Privilege Log has a general title of 'Communication Protected by Attorney Client Work Product Doctrine.' There is no 'Attorney Client Work Product Doctrine,' however, at least in West Virginia, and THF has therefore failed to 'identify the nature of the privilege that is being claimed' as to each document.")

Case Date Jurisdiction State Cite Checked
2013-07-11 Federal WV B 4/14

Chapter: 55.804
Case Name: SGD Eng'g Ltd. v. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186, at *28, *28-29 (D. Ariz. Apr. 17, 2013)
("Throughout its Privilege Logs, Lockheed use the words 'Attorney-Client and/or Work Product Privilege.' . . . The words and/or are legalese that careful writers avoid. The words are often ambiguous."; "In this case, Lockheed's use of and/or has created ambiguities. Many of the documents in Lockheed's e-mail strings include e-mail in which some of the e-mails include attorney-client communications while others do not. Use of the and/or expression makes it unclear for a given e-mail whether attorney-client privilege, work-product protection, or both are claimed.")

Case Date Jurisdiction State Cite Checked
2013-04-17 Federal AZ B 7/13

Chapter: 55.804
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247 (E.D. Va. 2012)
("Lawson responds by arguing that '[p]rivilege logs do not need to be precise to the point of pedantry.' . . . . According to Lawson, if its narratives were any more descriptive, they would reveal the privileged communications it is trying to protect."; "The fact that certain entries refer to documents which forward legal advice or contain such advice does not necessarily constitute waiver with respect to those entries.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA

Chapter: 55.805
Case Name: Heartland Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 U.S. Dist. LEXIS 124654 (S.D. Ind. July 25, 2018)
("Plaintiffs contend the descriptions suggest purely business discussions, rather than legal advice, and point to three descriptions as examples: 'Discussion between DineEquity employees, their agents, and their counsel re: waiting for fully executed trademark license agreement and supplier services agreement before beginning to source from Domino.'; 'Discussion between DineEquity employees, their agents, and their counsel re: impact of existing supplier services agreement with Domino on sweetener product transition, related trademark license agreement between DineEquity and Domino, and Domino indemnification.'; 'Discussion between DineEquity employees, their agents, and their counsel re: negotiation of trademark license agreement [with respect to] specific marks covered and description of products.'"; "The Court struggles to comprehend what information is supposedly lacking. . . . The Court will not require disclosure simply because the Defendants did not add "the legal impacts of" to each description.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal IN

Chapter: 55.805
Case Name: Little Hocking Water Ass'n v. E.I. Du Pont De Nemours & Co., Civ. A. 2:09-cv-1081, 2013 U.S. Dist. LEXIS 22213, at *55-56(S.D. Ohio Feb. 19, 2013)
("Little Hocking's privilege log does not support its assertion of privilege. More specifically, it is impossible to determine from Little Hocking's conclusory descriptions -- often simply 'Invoice for attorneys' fees,'. . . whether the attorney invoices capture privileged or [work] product protected information. The Court therefore concludes that Little Hocking has failed to meet its burden in protecting this information. Under the circumstances presented in this case, the Court agrees with DuPont that production that redacts privileged information is appropriate.")

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 55.805
Case Name: RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 218 (N.D. Ill. 2013)
("The Court agrees with Defendants that RBS's privilege log is inadequate to uphold their claims of privilege. RBS's privilege description for hundreds of documents is simply: 'Document containing non-responsive and privileged analysis re loan facilities including NBB based in part on and reflecting advice of counsel.'. . . This vague and generic description does not allow the Court or Defendants to assess RBS's claim of privilege as required by Rule 26(b)(5).")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal IL B 4/14

Chapter: 55.805
Case Name: Chevron Corp. v. Weinberg Grp., 286 F.R.D. 95, 98 (D.D.C. 2012)
("Unfortunately, all too many privilege logs would describe the very same document as 'Letter from client to lawyer -- attorney client privilege.' That entry is insufficient since there is no indication in the log of why the document was intended to be confidential. If the client, for example, sought the guidance from an attorney intending to make the document available to the IRS, he may have never intended the letter to the lawyer to be confidential; to the contrary, he intended to make it available to the IRS. This example also discloses another problem with an insufficient log -- it may disguise a flawed understanding of the privilege. In this case, the insufficient entry may well be premised on the incorrect notion that all communications between lawyer and client are privileged, even though the client does not intend the communication to be confidential, but instead intends to disclose it to some third party. See Mead Data Central, Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 255, 184 U.S. App. D.C. 350 (D.C. Cir. 1977). The sufficient entry at least warns the opposing party of that possibility, while the insufficient one does not. Despite the difference between the two entries and the obvious insufficiency of the latter, it is startling how common the insufficient entry is in most privilege logs.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 55.805
Case Name: In re Capital One Bank Credit Card Interest Rate Litig., 286 F.R.D. 676, 681 (N.D. Ga. 2012)
("Several of the examples cited by Plaintiffs are as follows: 'Draft letter prepared by in-house counsel reflecting legal advice [Capital One Legal] regarding [change-in-terms] mailings'; 'Email chain from in-house counsel to in-house counsel and company employees memorializing legal advice regarding changes in [change-in-terms] notice under the Card Act and Regulation Z;' and 'Email chain from company employee to in-house counsel and company employees providing information to counsel for use in the rendering of legal advice and memorializing legal advice regarding company's repricing practices.'")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal GA B 5/13

Chapter: 55.1001
Case Name: Johnson v. Ford Motor Co., Case No.: 3:13-cv-06529, Case No.: 3:13-cv-14207, Case No.: 3:13-cv-20976, 2015 U.S. Dist. LEXIS 115425 (S.D.W. Va. Aug. 28, 2015)
(ordering a supplemental log, because the defendant used boilerplate log language; "'When a party provides an inadequate or untimely privilege log, the Court may choose between four remedies: (1) give the party another chance to submit a more detailed log; (2) deem the inadequate log a waiver of the privilege; (3) inspect in camera all of the withheld documents; and (4) inspect in camera a sample of the withheld documents.'"; "While Ford should have realized its document descriptions were inadequate, the undersigned finds that the current circumstances do not justify application of the harshest remedy. Accordingly, the Court FINDS that waiver of privilege related to the withheld ASO investigation documents is not an appropriate sanction at this juncture. Instead, the Court ORDERS Ford to supplement the ASO privilege log with more detailed descriptions of the withheld documents in accordance with Federal Rule of Civil Procedure 26(b)(5)(A), so that Plaintiffs may 'make an intelligent determination about the validity of the assertion of the privilege'. . . . Ford's new supplemental privilege log should provide Plaintiffs with an opportunity to focus their attention on challenging Ford's claim of privilege in relation to specific withheld documents, rather than arguing all of the 132 documents are not privileged for various reasons.")

Case Date Jurisdiction State Cite Checked
2015-08-28 Federal WV

Chapter: 55.1002
Case Name: Motorola Solutions, Inc. v. Hytera Communications Corp., No. 17 C 1973, 2018 U.S. Dist. LEXIS 64095 (N.D. Ill. April 17, 2018)
(noting that the plaintiff's privilege claims shrunk when challenged; "As so often occurs, claims of privilege have played an important role in this case, with Motorola raising the privilege to the turnover of over 700 documents, which were supported by a plainly inadequate privilege log, which Motorola was forced to redo to comply with basic requirements under the Federal Rules of Civil Procedure. . . . Motorola then slashed its privilege claims to cover just over 100 documents, proving once again that unfortunately excessive claims of privilege are commonplace in modern litigation, and that they are often indiscriminately and improperly used 'on documents that do not truly qualify for protection. . . . The claims of privilege often dissipate when a party is required to properly support them. That is what happened here. For Hytera, the 100 or so purportedly privileged documents that remained are still too many.")

Case Date Jurisdiction State Cite Checked
2018-04-17 Federal IL
Comment:

key case


Chapter: 55.1002
Case Name: West Bend Mutual Ins. Co. v. Zurich American Ins. Company, No. 17 C 2598, 2018 U.S. Dist. LEXIS 61016 (N.D. Ill. April 11, 2018)
(noting that defendant had initially claimed privilege for many documents, but ultimately dropped many of its privilege claims; "Zurich, as is usually the case, made sweeping claims of attorney-client privilege and work product, and produced only heavily redacted documents. The claims were exaggerated, proving once again that excessive claims of privilege are all too commonplace in modern litigation and that they are indiscriminately and improperly used 'on documents that do not truly qualify for protection.'"; "After an initial hearing on this dispute, Zurich had more than a moment of self-realization and 'reconsidered many of the redactions made in its Privilege Log.' It then produced many previously withheld or redacted documents. And so, of the original 200 or so documents at issue . . . only about 80 remain.")

Case Date Jurisdiction State Cite Checked
2018-04-11 Federal IL
Comment:

key case


Chapter: 55.1002
Case Name: Winfield v. City of New York, 15-CV-05236 (LTS) (KHP), 2017 U.S. Dist. LEXIS 194413 (S.D.N.Y. Nov. 27, 2017)
("In connection with the City's submission concerning its privilege assertions over the sample set of 80 documents, the City withdrew its privilege designation as to 36 documents and produced them. It also withdrew its privilege designation as to another 15 documents but it did not produce them because it asserted they were non-responsive. Out of the 80 document sample, the City maintained its original privilege assertion(s) over only 20 documents. This Court subsequently ordered the City to submit all 80 documents to this Court for in camera review and a more detailed log for purposes of assessing the validity of the remaining privilege designations. The City submitted the documents and detailed privilege log.")

Case Date Jurisdiction State Cite Checked
2017-11-27 Federal NY

Chapter: 55.1002
Case Name: La. Municipal Police Employees Retirement Sys. v. Green Mountain Coffee Roasters, Inc., Case No. 2:11-cv-289, 2017 U.S. Dist. LEXIS 165151 (D. Vt. April 7, 2017)
("[C]ourts must at times recognize 'the unique role that an in-house attorney brings to bear in imparting [legal] advice that may incidentally also involve business advice.'. . . That role necessarily includes drafting language for public statements with respect to regulated transactions . . . and advising on potential litigation."; "Plaintiffs submit that Defendants' assertions of privilege are unreliable. For support, they observe that some of the documents Defendants at first withheld, then later produced as non-privileged, bear the same description as documents that remain undisclosed. While Defendants stand by their privilege determinations, they have also invited the Court to undertake an in camera review of any challenged documents."; "The parties have been disputing attorney-client privilege for months, and Defendants have amended their disclosures as many as nine times. With a document production of over one million documents, such revisiting and revision is perhaps understandable. It is also evidence of Defendants' good faith, as they have repeatedly acknowledged errors and made amends. At this point, Defendants assert that their disclosures are complete, and the Court is reticent to undertake yet another review of the documents in question. . . . Plaintiffs' motion to compel additional documents, based upon the suspicion that they contain business rather than legal advice, is denied.")

Case Date Jurisdiction State Cite Checked
2017-04-07 Federal VT
Comment:

key case


Chapter: 55.1002
Case Name: Dyson, Inc. v. SharkNinja Operating LLC, No. 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. Apr. 5, 2017)
June 7, 2017 (PRIVILEGE POINT)

"Court Offers Rare Good News and a Helpful Hint about Effective Privilege Logs"

Plaintiffs suing document-laden corporate defendants often try to make privilege log mistakes into a destructive side show.

In Dyson, Inc. v. SharkNinja Operating LLC, No. 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. Apr. 5, 2017), the court acknowledged that defendant had made privilege log mistakes and withheld some unprotected documents. But the court refused plaintiff's request for a Special Master's appointment – noting that defendant's over-designation was not "a systemic problem," and that "it appears to the Court that this is simply the type of human error that will necessarily occur when a large document review and production is undertaken." Id. at *15. The court's review of some withheld documents also provided a helpful hint about how lawyers and their corporate clients can maximize their chance of winning privilege fights. The court held that an email seeking "'initial reactions'" to what was likely an advertisement was not privileged, although a lawyer received a copy. Id. at *7 (internal citation omitted). The court noted that the email "does not request legal advice from [the lawyer] or discuss any legal issues." Id.

Some courts' refreshingly realistic approach to privilege log errors should encourage corporate defendants. But those defendants should train their employees seeking legal advice to explicitly request it in communications – because even tolerant courts often protect only those documents which demonstrate their primarily legal purpose on their face.

Case Date Jurisdiction State Cite Checked
2017-04-05 Federal IL
Comment:

key case


Chapter: 55.1002
Case Name: General Electric v. United States, No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562 (D. Conn. Sept. 15, 2015)
("The Government further argues that certain documents claimed as privileged were predominantly for business purposes, not legal or tax advice purposes. . . . The Government maintains this objection despite GE's explicit descriptions of documents on the privilege log as 'reflecting legal advice' or 'reflecting tax advice.' The Government presented a few examples of documents that had been claimed as privileged in one production, but otherwise disclosed in another part of GE's production as unprivileged. I cannot conclude from these isolated examples that there is an endemic or systemic concern with GE's privilege designations, in view of the very large number of documents subject to production and in light of the detailed representations of GE's counsel concerning the privilege review quality-assurance process. Moreover, in view of the kinds of complex commercial transactions at issue in this case and with their substantial legal regulatory overtones, it is far from surprising that GE would validly claim privilege to a large proportion of responsive documents.").

Case Date Jurisdiction State Cite Checked
2015-09-15 Federal CT
Comment:

key case


Chapter: 55.1002
Case Name: Bacchi v. Massachusetts Mutual Life Insurance Company, Civ. A. No. 12-cv-11280-DJC, 2015 U.S. Dist. LEXIS 80552 (D. Mass. June 22, 2015)
("[E]ven assuming that the standard practice among the bar favors providing a fully adequate stand-alone log, the Court is not inclined to order the defendant to create a new, more robust log here where doing so would delay the completion of discovery, and where the plaintiff's unexplained delay in raising this issue timely has at least helped to exacerbate what in all likelihood could have been an easily resolvable discovery matter.")

Case Date Jurisdiction State Cite Checked
2015-06-22 Federal MA

Chapter: 55.1002
Case Name: Bacchi v. Massachusetts Mutual Life Insurance Company, Civ. A. No. 12-cv-11280-DJC, 2015 U.S. Dist. LEXIS 80552 (D. Mass. June 22, 2015)
("[I]t would undoubtedly have been ideal for the defendant to produce a log which on its own provided all of the information necessary for the plaintiff to assess the privilege claims, as doing so surely would have facilitated and expedited the plaintiff's review and analysis. That being said, the court finds that the privilege log is sufficiently adequate when viewed alongside the corresponding document(s) to allow the plaintiff to assess the privilege claim.")

Case Date Jurisdiction State Cite Checked
2015-06-22 Federal MA

Chapter: 55.1002
Case Name: In re 650 Fifth Avenue & Related Properties, No. 08 Civ. 10934 (KBF), 2013 U.S. Dist. LEXIS 64150, at *10 (S.D.N.Y. Apr. 24, 2013)
July 3, 2013 (PRIVILEGE POINT)

"Courts Issue Practical Rulings on Privilege Logs"

Some courts have adopted unrealistically strict rules about privilege logs, such as a requirement to list every person who learned a withheld document's content. Fortunately, other courts take a more common-sense view of privilege logs.

In SGD Engineering Ltd. V. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186 (D. Ariz. Apr. 17, 2013), the court rejected plaintiff's argument that defendant had waived its privilege by submitting five versions of a privilege log and dropping privilege claims for several hundred documents. The court acknowledged that "[i]n large-volume document cases like this, it is not unusual for the privilege proponent to revise the details of its privilege log." Id. At *18. A week later, the Southern District of New York analyzed the government's argument that defendants' privilege log was inadequate. In In re 650 Fifth Avenue & Related Properties, the court noted that "[w]hat is good for the goose is good for the gander," and held that "[i]f the Government persists in its request that defendants revise their log to more adequately support the basis for their assertions of privilege, the Court will require that they produce a log with a similar level of detail." No. 08 Civ. 10934 (KBF), 2013 U.S. Dist. LEXIS 64150, at *10 (S.D.N.Y. Apr. 24, 2013).

It is refreshing to see some courts' realistic approach to privilege log issues.

Case Date Jurisdiction State Cite Checked
2013-04-24 Federal NY
Comment:

key case


Chapter: 55.1002
Case Name: SGD Engineering Ltd. V. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186 (D. Ariz. Apr. 17, 2013)
July 3, 2013 (PRIVILEGE POINT)

"Courts Issue Practical Rulings on Privilege Logs"

Some courts have adopted unrealistically strict rules about privilege logs, such as a requirement to list every person who learned a withheld document's content. Fortunately, other courts take a more common-sense view of privilege logs.

In SGD Engineering Ltd. V. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186 (D. Ariz. Apr. 17, 2013), the court rejected plaintiff's argument that defendant had waived its privilege by submitting five versions of a privilege log and dropping privilege claims for several hundred documents. The court acknowledged that "[i]n large-volume document cases like this, it is not unusual for the privilege proponent to revise the details of its privilege log." Id. At *18. A week later, the Southern District of New York analyzed the government's argument that defendants' privilege log was inadequate. In In re 650 Fifth Avenue & Related Properties, the court noted that "[w]hat is good for the goose is good for the gander," and held that "[i]f the Government persists in its request that defendants revise their log to more adequately support the basis for their assertions of privilege, the Court will require that they produce a log with a similar level of detail." No. 08 Civ. 10934 (KBF), 2013 U.S. Dist. LEXIS 64150, at *10 (S.D.N.Y. Apr. 24, 2013).

It is refreshing to see some courts' realistic approach to privilege log issues.

Case Date Jurisdiction State Cite Checked
2013-04-17 Federal AZ
Comment:

key case


Chapter: 55.1002
Case Name: Am. Mgmt. Servs., LLC v. Dep't of the Army, 842 F. Supp. 2d 859, 870 (E.D. Va. 2012)
(explaining that privilege logs are not expected to be perfect; "Pinnacle argues that inconsistencies between the contents of some of these released documents and the Vaughn index is evidence of bad faith. The Army concedes that there were some inconsistencies, but correctly argues that these few errors are not sufficient grounds for the striking the entire index or questioning the good faith of the Army. It is well to recall that there were almost a thousand pages of documents gathered by the Army in response to Pinnacle's request and, as the Fourth Circuit has recognized: '[I]n some cases the sheer magnitude of the requests and the disclosure makes it unrealistic to expect that a Vaughn index would be a work of art or contain the uniform precision that a substantially smaller universe of requested documents would entail. Parties who frame massive and all inclusive requests for documents should expect some fall off from perfection when the agency responds.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA B 4/13

Chapter: 55.1002
Case Name: NLRB v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011)
("In this case, Interbake provided a privilege log in which it identified the nature of each document, the date of its transmission or creation, the author and recipients, the subject, and the privilege asserted. Although the log is not detailed, if the assertions contained in it are credited, a court could reasonably conclude that all of the elements described in Rule 26(a)(5) and the test set forth in Jones had been met. While it is true, as the Board argues, that the attorney-client privilege does not apply simply because documents were sent to an attorney, see Simon v. G.D. Searle & Co., 816 F.2d 397, 403 (8th Cir. 1987), Interbake's log does more than that. It also shows that the communications concerned an investigation closely linked to the ongoing NLRB adjudication. Accordingly, we conclude that the district court did not abuse its discretion in concluding that the privilege log had made a prima facie showing that the three documents in question were protected from production by the attorney-client privilege."; remanding for additional review, including "if necessary," an in camera review of the withheld documents)

Case Date Jurisdiction State Cite Checked
2011-01-01 Federal

Chapter: 55.1003
Case Name: Yocabet v. UPMC Presbyterian and Univeristy of Pittsburgh Physicians, No. 569 WDA 2014, No. 1230 WDA 2014, 2015 Pa. Super. LEXIS 325 (Pa. June 5, 2015)
("[S]ince UPMC raised the appropriate allegations that the attorney-client privilege and/or peer review privilege potentially applied, the trial court could not require disclosure without examining the requested documents in camera to determine whether and to what extent the privileges applied to interrogatories numbered 23 and 24. We direct the creation of a privilege log, as mandated by T.M. and any documents identified on said log must be reviewed in camera by either the trial court or the master to determine whether those materials are discoverable.").

Case Date Jurisdiction State Cite Checked
2015-06-05 State PA

Chapter: 55.1004
Case Name: Minden Air Corp. v. Starr Indemnity & Liability Co., 3:13-cv-00592-HDM-WGC, 2015 U.S. Dist. LEXIS 11499 (D. Nev. Jan. 30, 2015)
(finding that a litigant was tardy in preparing a log, but noting that the adversary had not pushed for a log in six or seven months; "Although the record is clear that Starr did not move expeditiously to produce a privilege log after its assertion of the attorney-client privilege, neither did Minden Air do anything with regard to Starr's assertion of that privilege for some six or seven months after Starr's discovery responses were served. The privilege dispute was not addressed, as best as the court can ascertain, until Minden Air counsel mentioned it in one short paragraph in a six page discovery demand letter to Defendants' counsel dated September 29, 2014. (Doc. # 61-3 at 6.) In response to the reference to the omission of the privilege log in the demand letter, and as noted above, Starr's counsel sent the email referred to above representing the log would be forthcoming. There appears to have been no further communications between counsel before the motion to compel was filed.")

Case Date Jurisdiction State Cite Checked
2015-01-30 Federal NV

Chapter: 55.1004
Case Name: Powerweb Energy, Inc. v. Hubbell Bldg. Automation, Inc., Civ. No. 3:12CV220 (WWE), 2013 U.S. Dist. LEXIS 148083, at *5-6, *8 (D. Conn. Oct. 15, 2013)
("Plaintiff argues that the Court should deny defendants' motion to compel because it failed to request plaintiff's privilege log until after the close of discovery. . . . Although the Court questions why defendants delayed requesting the privilege log, the plaintiff should not be relieved of its responsibilities under the rules. Indeed, 'the requirement of a privilege log is intended to underscore the gravity, if not the solemnity, of an assertion that otherwise presumptively discoverable documents are exempt from discovery.' . . . Accordingly, the Court will not deny the motion to compel on the basis of untimeliness."; "Although the Court believes that defendants are entitled to production of a privilege log for any withheld privileged documents, it would not be fair to require plaintiffs to produce a log of pre-suit communications if defendants have not done so themselves. As such, plaintiff shall only be required to produce a privilege log of its withheld privileged pre-suit communications where defendants agree to do the same, to the extent it has not already. However, Counsel are of course free to abide by any understanding reached with defendants' prior counsel concerning the logging of withheld pre-suit communications. The Court encourages counsel to discuss any such understandings with prior counsel to determine whether any similar agreements may likewise be reached.")

Case Date Jurisdiction State Cite Checked
2013-10-15 Federal CT B 5/14

Chapter: 55.1004
Case Name: In re 650 Fifth Ave. & Related Props., No. 08 Civ. 10934 (KBF), 2013 U.S. Dist. LEXIS 64150, at *10-11 (S.D.N.Y. Apr. 24, 2013)
(holding that if the government successfully argued that defendants should be obligated to prepare a more detailed privilege log, the government would be held to the same standard; "The Government also asserts that defendants' logs are generally inadequate to support assertions of privilege. The Court agrees. The Court notes -- as defendants point out -- that the Government has as yet produced no log at all. What is good for the goose is good for the gander. If the Government persists in its request that defendants revise their log to more adequately support the basis for their assertions of privilege, the Court will require that they produce a log with a similar level of detail. The Government and defendants should confer and determine if the Government stands on its motion for a more detailed log. If it does, it should provide defendants with an appropriate log within 14 days and defendants shall revise theirs as well within the same timeframe. (As guidance, the Court notes that all entries should include the names of all recipients. In addition each attorney listed should be listed with the word 'esq.' and any person not an employee of defendant should have an affiliation listed. Finally, there should be sufficient detail regarding the topic as to which the advice was sought or the work product was created to allow the Court and the parties to understand the underlying assertion, along with the reason for the assertion -- e.g., 'client sought legal advice on transfer of funds,' etc.)")

Case Date Jurisdiction State Cite Checked
2013-04-24 Federal NY B 7/13

Chapter: 55.1004
Case Name: In re 650 Fifth Avenue & Related Properties, No. 08 Civ. 10934 (KBF), 2013 U.S. Dist. LEXIS 64150, at *10 (S.D.N.Y. Apr. 24, 2013)
July 3, 2013 (PRIVILEGE POINT)

"Courts Issue Practical Rulings on Privilege Logs"

Some courts have adopted unrealistically strict rules about privilege logs, such as a requirement to list every person who learned a withheld document's content. Fortunately, other courts take a more common-sense view of privilege logs.

In SGD Engineering Ltd. V. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186 (D. Ariz. Apr. 17, 2013), the court rejected plaintiff's argument that defendant had waived its privilege by submitting five versions of a privilege log and dropping privilege claims for several hundred documents. The court acknowledged that "[i]n large-volume document cases like this, it is not unusual for the privilege proponent to revise the details of its privilege log." Id. At *18. A week later, the Southern District of New York analyzed the government's argument that defendants' privilege log was inadequate. In In re 650 Fifth Avenue & Related Properties, the court noted that "[w]hat is good for the goose is good for the gander," and held that "[i]f the Government persists in its request that defendants revise their log to more adequately support the basis for their assertions of privilege, the Court will require that they produce a log with a similar level of detail." No. 08 Civ. 10934 (KBF), 2013 U.S. Dist. LEXIS 64150, at *10 (S.D.N.Y. Apr. 24, 2013).

It is refreshing to see some courts' realistic approach to privilege log issues.

Case Date Jurisdiction State Cite Checked
2013-04-24 Federal NY
Comment:

key case


Chapter: 55.1004
Case Name: SGD Engineering Ltd. V. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186 (D. Ariz. Apr. 17, 2013)
July 3, 2013 (PRIVILEGE POINT)

"Courts Issue Practical Rulings on Privilege Logs"

Some courts have adopted unrealistically strict rules about privilege logs, such as a requirement to list every person who learned a withheld document's content. Fortunately, other courts take a more common-sense view of privilege logs.

In SGD Engineering Ltd. V. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186 (D. Ariz. Apr. 17, 2013), the court rejected plaintiff's argument that defendant had waived its privilege by submitting five versions of a privilege log and dropping privilege claims for several hundred documents. The court acknowledged that "[i]n large-volume document cases like this, it is not unusual for the privilege proponent to revise the details of its privilege log." Id. At *18. A week later, the Southern District of New York analyzed the government's argument that defendants' privilege log was inadequate. In In re 650 Fifth Avenue & Related Properties, the court noted that "[w]hat is good for the goose is good for the gander," and held that "[i]f the Government persists in its request that defendants revise their log to more adequately support the basis for their assertions of privilege, the Court will require that they produce a log with a similar level of detail." No. 08 Civ. 10934 (KBF), 2013 U.S. Dist. LEXIS 64150, at *10 (S.D.N.Y. Apr. 24, 2013).

It is refreshing to see some courts' realistic approach to privilege log issues.

Case Date Jurisdiction State Cite Checked
2013-04-17 Federal AZ
Comment:

key case


Chapter: 55.1005
Case Name: BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Co., 14-CV-09367 (JMF) (SN), 2018 U.S. Dist. LEXIS 124631 (S.D.N.Y. July 23, 2018)
(analyzing common interest, work product and privilege log issues against defendant Deutsche Bank; focusing among other things on communications between Deutsche Bank as indenture trustee and as loan servicer; "The Court finds that Deutsche Bank has failed to provide an adequate privilege log notwithstanding multiple opportunities to do so. While some log entries are better than others -- for example, where descriptions make clear that documents are draft discovery responses or attorney bills -- Deutsche Bank's obligation is to provide sufficient information so that BlackRock is able to assess the privilege fully. Moreover, as explained in the Court's review of the exemplars, these deficient log entries often result in overly broad privilege assertions. Indeed, Deutsche Bank itself withdrew its privilege claims as to seven of the 20 documents that BlackRock selected as exemplars, and the Court found that an additional ten were improperly withheld."; "A privilege log is not a mere administrative exercise. Its purpose is to ensure that a withholding party can justify a privilege designation. By submitting a deficient log, Deutsche Bank attempted to bypass this requirement, resulting in vastly overinclusive privilege designations. In an attempt to avoid this very problem, the Court ordered Deutsche Bank to provide a sworn affidavit by a party representative explaining why 30 of the Common Interest Exemplars were protected under the common interest doctrine. Instead, Deutsche Bank offered the sworn statement of a Morgan, Lewis & Bockius partner. The Court requested a party representative to force the party to defend its designations in connection with these loan-level litigations. Counsel's views were not requested."; "The failure to provide a party affidavit is demonstrative of Deutsche Bank's broader failings with respect to its privilege log. The Court has given Deutsche Bank multiple opportunities to correct these deficiencies and it has failed to do so. Instead, Deutsche Bank waits until a document is challenged to review whether its privilege designation is correct. And as discussed earlier, when challenged, Deutsche Bank frequently realizes that the privilege was improperly asserted. This stance inappropriately shifts the burden to BlackRock to challenge a privilege assertion when Deutsche Bank should have established why a document was protected in the first place. A privilege log is not an iterative process and the Court will not offer Deutsche Bank another opportunity to follow the rules established in this Circuit."; "Accordingly, Deutsche Bank has waived its privilege with respect to all documents listed on its privilege log (except as otherwise ruled in this Order) unless it can make a particularized showing as to individual documents that it believes are (1) adequately described on its log and, (2) in fact, privileged. Only documents listed on the privilege log with complete information -- that is, the name of the author of the document, the name of any attorney, a clear description of the document, etc. -- could qualify for this safety valve. Absent an application to the Court within 30 days on a document-by-document basis, all documents on the privilege log must be produced. The parties are ordered to file their letters on the docket.")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal NY

Chapter: 55.1005
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 23067 (5th Cir. Nov. 16, 2017)
(analyzing an investigation into BDO's former chief human resource officer's Title VII lawsuit; "Given the 'broad' and 'considerable discretion' district courts have in discovery matters, we will not analyze the privilege logs in the first instance.")

Case Date Jurisdiction State Cite Checked
2017-11-16 Federal

Chapter: 55.1005
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 7965 (5th Cir. App. May 4, 2017)
("Here, BDO's privilege log does not provide sufficient detail to meet its burden of allowing opposing counsel or the trial court to determine whether entries merely described as 'legal advice,' or that included or courtesy copied attorneys, actually contained privileged legal advice. . . . Furthermore, not only does the log include conclusory descriptions of 'legal advice,' it does so in the context of communications with in-house counsel -- an area courts have acknowledged presents unique challenges when it comes to establishing attorney-client privilege."; "The privilege log's lack of description, coupled with Bower's sworn declaration that many of the communications described as 'legal advice' were not made for the purpose of seeking and imparting legal advice, compels the conclusion that the log entries warranted closer scrutiny than the trial court provided. The district court therefore erred when it determined, on the showing made, that these entries sufficed to prove BDO's prima facie case of privilege.")

Case Date Jurisdiction State Cite Checked
2017-05-04 Federal

Chapter: 55.1005
Case Name: NLRB v. NPC International, Inc., 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017)
("When a party supplies an inadequate privilege log, there are four possible remedies. The court can (1) provide the party another chance to submit a more detailed log; (2) deem the inadequate log a waiver of the privilege; (3) conduct an in camera inspection of the withheld documents; or (4) conduct an in camera inspection of a subset of the withheld documents.")

Case Date Jurisdiction State Cite Checked
2017-02-16 Federal TN

Chapter: 55.1005
Case Name: NLRB v. NPC International, Inc., 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017)
("Courts have generally found that waiver is appropriate where 'unjustified delay, inexcusable conduct, or bad faith are present.'")

Case Date Jurisdiction State Cite Checked
2017-02-16 Federal TN

Chapter: 55.1005
Case Name: Bacchi v. Massachusetts Mutual Life Insurance Company, Civ. A. No. 12-cv-11280-DJC, 2015 U.S. Dist. LEXIS 80552 (D. Mass. June 22, 2015)
("[E]ven assuming that the standard practice among the bar favors providing a fully adequate stand-alone log, the Court is not inclined to order the defendant to create a new, more robust log here where doing so would delay the completion of discovery, and where the plaintiff's unexplained delay in raising this issue timely has at least helped to exacerbate what in all likelihood could have been an easily resolvable discovery matter.")

Case Date Jurisdiction State Cite Checked
2015-06-22 Federal MA

Chapter: 55.1005
Case Name: Spear v. Fenkell, Civ. A. No. 13-02391, 2015 U.S. Dist. LEXIS 79648 (E.D. Pa. June 19, 2015)
("Mr. Fenkell points out that there are a number of documents identified in the Spear log that are not identified in the Alliance log. . . . He asserts that these discrepancies 'make it clear that neither log provides a comprehensive accounting of responsive documents."; "Accordingly, I direct the Alliance Parties to produce copies of the four subpoenas and to explain why each of the documents referenced in the Spear log were either (1) not in the possession of Alliance, Kenneth Wanko, or their attorneys, or (2) not subject to production based on the language of the other subpoenas. If this exercise uncovers documents that should have been included in Alliance's log and were not, Alliance must also explain why their privilege, such as it is, has not been waived. Whether the explanation is simple or complicated, it needs to be made in a convincing way. That has not happened yet."; "Mr. Fenkell's protestations of bad faith are premature. If and when it is clear that documents subject to a subpoena to Ballard Spahr, Deloitte, or Blank Rome were not identified in the Alliance privilege log, there will be time enough to consider a remedy.")

Case Date Jurisdiction State Cite Checked
2015-06-19 Federal PA

Chapter: 55.1005
Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)
(finding the common interest doctrine inapplicable for a communications with certain members of the University's board, because the University's privilege log did not identify the board members; "Judge Peebles was not required to allow the University to submit a revised privilege log, and his decision to review the withheld documents in camera rather than accept a revised privilege log was not an abuse of discretion. See N.L.R.B. v. Jackson Hosp. Corp., 257 F.R.D. 302, 307 (D.D.C. 2009) ('The inadequacy of a privilege log can be remedied in four ways: [(1)] [p]ermit the party another chance to submit a more detailed log; [(2)] [d]eem the inadequate log a waiver of the privilege; [(3)] [i]n camera inspection of the withheld documents; or [(4)] [i]n camera inspection of a select sample of the withheld documents.')")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY
Comment:

key case


Chapter: 55.1005
Case Name: Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., Case No. 2:07-cv-116, 2013 U.S. Dist. LEXIS 34943, at *17 (S.D. Ohio Mar. 13, 2013)
(concluding that Morgan Lewis's (defendant's lawyer) production of a privileged document resulted in a waiver; finding that the ethics obligations of a receiving lawyer did not affect the inadvertent disclosure analysis; "The Magistrate Judge essentially found that Medex CP's failure to produce a privilege log discredited its attempt to establish that it took reasonable precautions to prevent an inadvertent disclosure. Medex CP fails to show that this finding is clearly erroneous or contrary to law.")

Case Date Jurisdiction State Cite Checked
2013-03-13 Federal OH B 3/14

Chapter: 55.1006
Case Name: Progressive Southeastern Insurance Co. v. Arbormax Tree Service, LLC, 5:16-CV-662-BR, 2018 U.S. Dist. LEXIS 159222 (E.D.N.C. Sept. 17, 2018)
(analyzing log requirements in a third party insurance context; "The court finds that the proper course for addressing the deficiencies in the privilege log is to conduct an in camera review of the documents listed in it that have not already been produced. While the court has considered whether the deficiencies warrant a finding that plaintiff has waived the protections claimed as to all the listed documents it has not already produced, it has concluded that such a resolution is inappropriate in light of plaintiff's seemingly conscientious attempt to comply with the requirement for a privilege log. Plaintiff will therefore be required to submit for in camera inspection the documents listed in the privilege log it has not already produced.")

Case Date Jurisdiction State Cite Checked
2018-09-17 Federal NC

Chapter: 55.1006
Case Name: William Powell Co. v. Nat’l Indem. Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 157733, at *10 (S.D. Ohio Sept. 26, 2017)
December 20, 2017 (PRIVILEGE POINT)

"Courts Address Requests That They Review Withheld Documents In Camera"

Because attorney-client privilege protection depends mostly on content, courts frequently read withheld documents in camera. Work product protection depends mostly on context rather than content, but even with that protection, courts may be called upon to review withheld documents. But must judges always review withheld documents in camera before deciding privilege or work product issues?

In Kushner v. Buhta, the court concluded that third party City of Minneapolis' privilege log's "general descriptions . . . failed to independently support a claim of work product protection" -- and thus held that the magistrate judge "did not err in requiring in camera review." Civ. No. 16-CV-2646 (SRN/SER) 2017 U.S. Dist. LEXIS 155981, at *10 (D. Minn. Sept. 25, 2017). The court also agreed with the magistrate judge that "upon review, the claimed protection is belied by the documents' contents." Id. One day later, another federal court determined it "will not conduct an in camera review of the third-party documents it previously held were not entitled to protection under the attorney-client privilege." William Powell Co. v. Nat’l Indem. Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 157733, at *10 (S.D. Ohio Sept. 26, 2017). The court explicitly rejected defendant's argument that an Ohio law required such an in camera review -- explaining that the defendant "has not cited any cases to show that Ohio's in camera review requirements are binding on federal courts." Id. at *9.

Case Date Jurisdiction State Cite Checked
2017-09-26 Federal OH
Comment:

key case


Chapter: 55.1006
Case Name: Kushner v. Buhta, Civ. No. 16-CV-2646 (SRN/SER) 2017 U.S. Dist. LEXIS 155981, at *10 (D. Minn. Sept. 25, 2017)
December 20, 2017 (PRIVILEGE POINT)

"Courts Address Requests That They Review Withheld Documents In Camera"

Because attorney-client privilege protection depends mostly on content, courts frequently read withheld documents in camera. Work product protection depends mostly on context rather than content, but even with that protection, courts may be called upon to review withheld documents. But must judges always review withheld documents in camera before deciding privilege or work product issues?

In Kushner v. Buhta, the court concluded that third party City of Minneapolis' privilege log's "general descriptions . . . failed to independently support a claim of work product protection" -- and thus held that the magistrate judge "did not err in requiring in camera review." Civ. No. 16-CV-2646 (SRN/SER) 2017 U.S. Dist. LEXIS 155981, at *10 (D. Minn. Sept. 25, 2017). The court also agreed with the magistrate judge that "upon review, the claimed protection is belied by the documents' contents." Id. One day later, another federal court determined it "will not conduct an in camera review of the third-party documents it previously held were not entitled to protection under the attorney-client privilege." William Powell Co. v. Nat’l Indem. Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 157733, at *10 (S.D. Ohio Sept. 26, 2017). The court explicitly rejected defendant's argument that an Ohio law required such an in camera review -- explaining that the defendant "has not cited any cases to show that Ohio's in camera review requirements are binding on federal courts." Id. at *9.

Case Date Jurisdiction State Cite Checked
2017-09-25 Federal MN
Comment:

key case


Chapter: 55.1006
Case Name: GE v. United States, No. 3:14-cv-00190 (JAM), 2015 U.S. Dist. LEXIS 122562 (D. Conn. Sept. 15, 2015)
("GE contends that, although it cannot always identify a document's author and recipient, it is still possible to ascertain from the content of a document that it reflects the seeking of or rendering of legal or tax advice. Perhaps and even likely so. Indeed, the Government itself claims privilege for certain of its documents without identification of author and recipient. But as a categorical matter the claim of privilege remains more tenuous and uncertain in the absence of a link to a communication."; "For this reason, I conclude that it is appropriate for this discrete category of standalone documents that are altogether bereft of the required author and recipient designations to be subject to independent review by a special master to be appointed in accordance with Fed. R. Civ. P. 53.").

Case Date Jurisdiction State Cite Checked
2015-09-15 Federal CT

Chapter: 55.1006
Case Name: AKH Company, Inc. v. Universal Underwriters Insurance Company, Case No. 13-2003-JAR-KGG, 2015 U.S. Dist. LEXIS 97366 (D. Kan. July 27, 2015)
("Given this context, the Court finds that there is sufficient need to require Gauntlett to provide additional, specific information addressing the documents implicated. The Court does not, however, find that a revised privilege log is the most efficient way to address the situation given the obviously privileged nature of communications between Gauntlett and Plaintiff AKH, Gauntlett's former client."; "As such, Gauntlett is ordered to submit to the Court, for in camera inspection, all documents and communications between itself and Plaintiff AKH, other counsel (whether coverage counsel or litigating counsel), and/or any third parties, that were withheld on the basis of the attorney-client privilege or work product doctrine, that were created or occurred from the completion of the unsuccessful mediation in September 2012 until Defendant Universal received the final draft of the settlement agreement with RT in December 2012."; "To the extent Gauntlett has withheld any communications with, or documents shared with, any non-client third parties at any time on the basis of the attorney-client privilege or work product doctrine, such documents shall be produced to Defendant Universal as no privilege applies to documents shared with a third party.")

Case Date Jurisdiction State Cite Checked
2015-07-27 Federal KS

Chapter: 55.1006
Case Name: Yocabet v. UPMC Presbyterian and Univeristy of Pittsburgh Physicians, No. 569 WDA 2014, No. 1230 WDA 2014, 2015 Pa. Super. LEXIS 325 (Pa. June 5, 2015)
("[S]ince UPMC raised the appropriate allegations that the attorney-client privilege and/or peer review privilege potentially applied, the trial court could not require disclosure without examining the requested documents in camera to determine whether and to what extent the privileges applied to interrogatories numbered 23 and 24. We direct the creation of a privilege log, as mandated by T.M. and any documents identified on said log must be reviewed in camera by either the trial court or the master to determine whether those materials are discoverable.").

Case Date Jurisdiction State Cite Checked
2015-06-05 State PA

Chapter: 55.1006
Case Name: Fine v. ESPN, Inc., 5:12-CV-0836 (LEK/DEP), 2015 U.S. Dist. LEXIS 68704 (N.D.N.Y. May 28, 2015)
(finding the common interest doctrine inapplicable for a communications with certain members of the University's board, because the University's privilege log did not identify the board members; "Judge Peebles was not required to allow the University to submit a revised privilege log, and his decision to review the withheld documents in camera rather than accept a revised privilege log was not an abuse of discretion. See N.L.R.B. v. Jackson Hosp. Corp., 257 F.R.D. 302, 307 (D.D.C. 2009) ('The inadequacy of a privilege log can be remedied in four ways: [(1)] [p]ermit the party another chance to submit a more detailed log; [(2)] [d]eem the inadequate log a waiver of the privilege; [(3)] [i]n camera inspection of the withheld documents; or [(4)] [i]n camera inspection of a select sample of the withheld documents.')")

Case Date Jurisdiction State Cite Checked
2015-05-28 Federal NY
Comment:

key case


Chapter: 55.1006
Case Name: Swoboda v. Manders, Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015)
June 3, 2015 (PRIVILEGE POINT)

“Courts React Differently to Litigants' Failure to Properly Log Withheld Documents”

The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log, or failure to prepare an adequate log. Four decisions highlight the spectrum of courts' possible remedies.

In Apple Inc. v. Samsung Electronics Co., the court condemned defendant Samsung's privilege log as having provided "only generic statements" supported by a "'vague declaration'" — but explained that he had earlier "granted in camera review" rather than ordering the documents produced. Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015) (citation omitted). In Thermoset Corp. v. Building Materials Corp. of America, the court noted that defendant did not provide a supplemental privilege log until 38 days after producing responsive documents, but declined to find a waiver despite the tardiness — relying on a "'holistic reasonableness analysis.'" Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015) (citation omitted). In United States v. Biberstein, the court criticized respondent's privilege log as providing "little help to the Court" — because it lacked pertinent dates and contained only "boilerplate language." No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015). Noting that respondent "had numerous opportunities to meet his burden to demonstrate that the documents are privileged" (id.), the court ordered defendant to produce all the withheld documents (declining respondent's offer to allow the court's in camera review). In Swoboda v. Manders, the court condemned plaintiff's failure to prepare a log — bluntly ordering plaintiff to produce "any documents related to allegations in the plaintiff's complaint" (apparently even including "communications with counsel that [took] place after the filing of a law suit"). Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015).

Given the unpredictability of courts' reactions to nonexistent, tardy, or insufficient privilege logs, litigants should comply with local rules and customs — and familiarize themselves with the presiding judge's likely approach.

Case Date Jurisdiction State Cite Checked
2015-04-27 Federal LA
Comment:

key case


Chapter: 55.1006
Case Name: VC Management, LLC v. Reliastar Life Ins. Co., No. 14 CV 1385, 2015 U.S. Dist. LEXIS 51343 (N.D. Ill. April 20, 2015)
("Notably, VCM did not raise the inadequacy of the privilege log until after the close of written discovery and only after Kusick's deposition. Because Local Rule 37.2 requires that prior to filing a discovery motion, the parties are required to certify that they made good faith attempts to resolve their differences and because VCM failed to do so, its argument fails. To be clear, the court conducted an in camera review of the withheld emails to address VCM's suspicion that the withheld communications were about seeking and rendering business advice, not because the court found the privilege log lacking in specificity.")

Case Date Jurisdiction State Cite Checked
2015-04-20 Federal IL

Chapter: 55.1006
Case Name: Thermoset Corp. v. Building Materials Corp. of America, Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015)
June 3, 2015 (PRIVILEGE POINT)

“Courts React Differently to Litigants' Failure to Properly Log Withheld Documents”

The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log, or failure to prepare an adequate log. Four decisions highlight the spectrum of courts' possible remedies.

In Apple Inc. v. Samsung Electronics Co., the court condemned defendant Samsung's privilege log as having provided "only generic statements" supported by a "'vague declaration'" — but explained that he had earlier "granted in camera review" rather than ordering the documents produced. Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015) (citation omitted). In Thermoset Corp. v. Building Materials Corp. of America, the court noted that defendant did not provide a supplemental privilege log until 38 days after producing responsive documents, but declined to find a waiver despite the tardiness — relying on a "'holistic reasonableness analysis.'" Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015) (citation omitted). In United States v. Biberstein, the court criticized respondent's privilege log as providing "little help to the Court" — because it lacked pertinent dates and contained only "boilerplate language." No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015). Noting that respondent "had numerous opportunities to meet his burden to demonstrate that the documents are privileged" (id.), the court ordered defendant to produce all the withheld documents (declining respondent's offer to allow the court's in camera review). In Swoboda v. Manders, the court condemned plaintiff's failure to prepare a log — bluntly ordering plaintiff to produce "any documents related to allegations in the plaintiff's complaint" (apparently even including "communications with counsel that [took] place after the filing of a law suit"). Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015).

Given the unpredictability of courts' reactions to nonexistent, tardy, or insufficient privilege logs, litigants should comply with local rules and customs — and familiarize themselves with the presiding judge's likely approach.

Case Date Jurisdiction State Cite Checked
2015-04-08 Federal FL
Comment:

key case


Chapter: 55.1006
Case Name: Apple Inc. v. Samsung Electronics Co., Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015)
June 3, 2015 (PRIVILEGE POINT)

“Courts React Differently to Litigants' Failure to Properly Log Withheld Documents”

The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log, or failure to prepare an adequate log. Four decisions highlight the spectrum of courts' possible remedies.

In Apple Inc. v. Samsung Electronics Co., the court condemned defendant Samsung's privilege log as having provided "only generic statements" supported by a "'vague declaration'" — but explained that he had earlier "granted in camera review" rather than ordering the documents produced. Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015) (citation omitted). In Thermoset Corp. v. Building Materials Corp. of America, the court noted that defendant did not provide a supplemental privilege log until 38 days after producing responsive documents, but declined to find a waiver despite the tardiness — relying on a "'holistic reasonableness analysis.'" Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015) (citation omitted). In United States v. Biberstein, the court criticized respondent's privilege log as providing "little help to the Court" — because it lacked pertinent dates and contained only "boilerplate language." No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015). Noting that respondent "had numerous opportunities to meet his burden to demonstrate that the documents are privileged" (id.), the court ordered defendant to produce all the withheld documents (declining respondent's offer to allow the court's in camera review). In Swoboda v. Manders, the court condemned plaintiff's failure to prepare a log — bluntly ordering plaintiff to produce "any documents related to allegations in the plaintiff's complaint" (apparently even including "communications with counsel that [took] place after the filing of a law suit"). Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015).

Given the unpredictability of courts' reactions to nonexistent, tardy, or insufficient privilege logs, litigants should comply with local rules and customs — and familiarize themselves with the presiding judge's likely approach.

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal CA
Comment:

key case


Chapter: 55.1006
Case Name: United States v. Biberstein, No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015)
June 3, 2015 (PRIVILEGE POINT)

“Courts React Differently to Litigants' Failure to Properly Log Withheld Documents”

The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log, or failure to prepare an adequate log. Four decisions highlight the spectrum of courts' possible remedies.

In Apple Inc. v. Samsung Electronics Co., the court condemned defendant Samsung's privilege log as having provided "only generic statements" supported by a "'vague declaration'" — but explained that he had earlier "granted in camera review" rather than ordering the documents produced. Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015) (citation omitted). In Thermoset Corp. v. Building Materials Corp. of America, the court noted that defendant did not provide a supplemental privilege log until 38 days after producing responsive documents, but declined to find a waiver despite the tardiness — relying on a "'holistic reasonableness analysis.'" Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015) (citation omitted). In United States v. Biberstein, the court criticized respondent's privilege log as providing "little help to the Court" — because it lacked pertinent dates and contained only "boilerplate language." No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015). Noting that respondent "had numerous opportunities to meet his burden to demonstrate that the documents are privileged" (id.), the court ordered defendant to produce all the withheld documents (declining respondent's offer to allow the court's in camera review). In Swoboda v. Manders, the court condemned plaintiff's failure to prepare a log — bluntly ordering plaintiff to produce "any documents related to allegations in the plaintiff's complaint" (apparently even including "communications with counsel that [took] place after the filing of a law suit"). Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015).

Given the unpredictability of courts' reactions to nonexistent, tardy, or insufficient privilege logs, litigants should comply with local rules and customs — and familiarize themselves with the presiding judge's likely approach.

Case Date Jurisdiction State Cite Checked
2015-03-23 Federal NC
Comment:

key case


Chapter: 55.1006
Case Name: In re PWK Timberland, LLC, Case No. 13-20242, 2015 Bankr. LEXIS 248 (W.D. La. Jan. 27, 2015)
("[T]he revised privilege log provided in connection with the tender of privileged documents for in camera review does satisfy the requirements of that order and is sufficient to identify the grounds for PWK's privilege claims.")

Case Date Jurisdiction State Cite Checked
2015-01-27 Federal LA

Chapter: 55.1006
Case Name: Chevalier-Seawell v. Mangum, Case No. CL14-2789, 2015 Va. Cir. LEXIS 146 (Va. 2015)
("Many of the emails described in the privilege log suggest that they are not related to legal advice but to the insurer's business of valuing and paying settlement claims, e.g., '27. 3/27/15 email from Stanley to Zaleski on settlement authority.' Communication from an insurance adjuster providing settlement authority to trial counsel is not the solicitation of legal advice. The description furnished by counsel does not support the claim of privilege as to that document. In an abundance of caution, however, because it is a communication between Allstate and its lawyer, the Court will not order production of the remaining items listed on the Privilege Log at this time and instead orders that those materials be produced for in camera review by the Court. Any such documents that are not communications made for the primary purpose of securing or providing legal advice, as contrasted with the investigation and adjustment of a claim that represents a regular business function in the insurance industry and can be done by individuals not licensed to practice law, will not be deemed privileged.").

Case Date Jurisdiction State Cite Checked
2015-01-01 State VA
Comment:

key case


Chapter: 55.1006
Case Name: In re McDonald, Case No. 13-10663C-7G, Case No. 13-10664C-7G, Jointly Administered in Case No. 13-10661, 2014 Bankr. LEXIS 3780, at *16 (M.D.N.C. Sept. 3, 2014)
("There are some documents that are described in the privilege logs as having been sent by the Attorneys to the Debtors that include a reference to providing advice, or as advising the Debtors. While the descriptions of these documents provides little other information regarding the advice referenced in the logs, these descriptions are sufficient to warrant an in camera inspection by the court to determine whether these documents fall within the attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2014-09-03 Federal NC

Chapter: 55.1006
Case Name: King Drug Co. of Florence, Inc. v. Cephalon, Inc., Civ. A. Nos. 2:06-cv-1797 & 2:08-cv-2141, 2013 U.S. Dist. LEXIS 129472, at *24-25 (E.D. Pa. Sept. 11, 2013)
("[A]lthough Cephalon submitted a detailed privilege log and several affidavits in support of its argument that the communications at issue were legal in nature and therefore properly withheld, the log descriptions and the affidavits were too general to permit the Court to resolve the dispute without reviewing the communications themselves. This was, of course, necessary to some extent as the party asserting the privilege faces the difficult task of providing enough detail to establish its claim of privilege, but not so much detail that it inadvertently discloses the content of the communications. Accordingly, our determination that an in camera review of the documents was necessary should not be viewed as an indication of any deficiency in Cephalon's privilege log or support of its privilege claim.")

Case Date Jurisdiction State Cite Checked
2013-09-11 Federal PA B 4/14

Chapter: 55.1006
Case Name: Walter v. Travelers Pers. Ins. Co., Civ. No. 4:12-CV-346, 2013 U.S. Dist. LEXIS 72771, at *12-13 (M.D. Pa. May 22, 2013)
(in a first party insurance case, finding that insurance company documents deserved privilege and work product protection; "[S]ince we have actually examined each of the documents that have been withheld, we are in a position to determine whether or not any of the privileges or bases for withholding the documents from production are, in fact, applicable. Upon review of these materials, we conclude that each document has been properly withheld either as privileged or, in other cases, because it constitutes attorney work-product and, in many cases, because both defenses to disclosure apply. Given this finding, we do not find it necessary or relevant to examine whether the privilege log itself was adequate or conformed with the privilege logs that were at issue in other discovery disputes decided by other courts, as the plaintiff suggests.")

Case Date Jurisdiction State Cite Checked
2013-05-22 Federal PA B 4/14

Chapter: 55.1006
Case Name: Assured Guar. Mun. Corp. v. UBS Real Estate Sec. Inc., Nos. 12 Civ. 1579 & 7322 (HB) (JCF), 2013 U.S. Dist. LEXIS 41785, at *30-31 (S.D.N.Y. Mar. 25, 2013)
(allowing a categorical privilege log; "Therefore, UBS's motion to identify privileged documents by category is granted. It shall produce a privilege log of documents protected by work product and attorney-client privilege consistent with this opinion. Should there arise a dispute regarding categorization of documents, the parties may submit them for in camera review, and I may order the documents to be recategorized. Moreover, if the producing party mischaracterizes a document, I may find waiver or shift the costs and attorneys' fees incurred by the party seeking such review to the extent deemed appropriate.")

Case Date Jurisdiction State Cite Checked
2013-03-25 Federal NY B 3/14

Chapter: 55.1006
Case Name: RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 219 (N.D. Ill. 2013)
("The lack of information in RBS's privilege log means that the Court has had to make its privilege determinations based almost exclusively on examinations of the documents themselves. . . . Without any explanation of what the documents are, who authored them, or the purpose for which they were created, the Court determines that the vast majority of the disputed documents -- mostly spreadsheets containing financial data -- are not in fact privileged.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal IL B 4/14

Chapter: 55.1006
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013, at *160, 160-61, 161 (S.D. Ohio Nov. 13, 2012)
("[P]laintiffs assert that the log still lacks basic information for certain entries, such as the author, recipient, and creation date for documents and fails to provide requisite information, e.g., that a document was created in anticipation of litigation. Plaintiffs request that the Court order defendants to provide a log which adheres to the requirements enunciated in the August 2011 Order."; "In response, defendants contend that the log comports with the requirements of Fed. R. Civ. P. 26, which permits the omission of certain details when the volume of the documents withheld would make inclusion unduly burdensome. Defendants assert that they spent significant time revising the log in order to comply with the August 2011 Order and, with the exception of a small minority of entries, have included all requisite details. In those instances where certain information is not facially apparent, such as the author of a document, defendants have provided the names of a custodian and other descriptive details which they claim provide plaintiffs sufficient information to analyze the privilege claims."; "After spending a substantial amount of time reviewing and referring to defendants' privilege log while undertaking the instant in camera review, the undersigned finds that the current version of the log is sufficient and declines to require defendants to produce yet another privilege log.")

Case Date Jurisdiction State Cite Checked
2012-11-13 Federal OH B 7/13

Chapter: 55.1007
Case Name: Hopkins v. Board of County Commissioners of Wilson County, Kansas, Case No. 15-cv-2072-CM-TJJ, 2018 U.S. Dist. LEXIS 122356 (D. Kansas July 23, 2018)
("Due to the confusion when ACH's discovery responses were actually due, the Court declines to find ACH waived its claims of attorney-client privilege and work product by its failure to serve its privilege log when its discovery responses were due. As noted above, ACH likely realized on March 8, 2018 that Plaintiffs' counsel was not planning to re-serve the discovery requests. Construing March 8 as the date Plaintiffs' discovery requests were presumptively re-served on ACH, then ACH's discovery responses would have been due 30 days later, or on April 9, 2018. ACH provided its initial privilege log on April 30, 2018, after its counsel spoke with Plaintiffs' counsel on April 3, 2018. ACH provided a revised privilege log two week later on May 14, 2018, after Plaintiffs raised issues with the sufficiency of ACH's original privilege log."; "As recognized by courts in this District, waiver of privilege is a harsh sanction and should be reserved as a penalty where the offending party committed unjustified delay in responding. The Court finds ACH's relatively short delay in providing a privilege log was not unjustified and does not warrant the harsh sanction of waiver.")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal KS

Chapter: 55.1007
Case Name: Fint v. Brayman Construction Corp., Case No. 5:17-cv-04043, 2018 U.S. Dist. LEXIS 103772, at *9 (S.D.W. Va. June 21, 2018)
August 8, 2018 (PRIVILEGE POINT)

"Remember Courts' Privilege-Related Local Rules"

Lawyers familiar with abstract and even case-specific substantive privilege and work product-related principles must keep something else in mind. Many if not most courts have also adopted local rules that might affect the process under which those courts address privilege and work product issues.

In Scheller v. Williams Companies, Inc., Case No. CIV-17-632-M, 2018 U.S. Dist. LEXIS 96880, at *12 (W.D. Okla. June 1, 2018), the court explained that it was "unable to rule on any claims of privilege at this time" – because the parties had conducted their mandatory "meet and confer" discussion "prior to the production of [the pertinent party's] privilege log." The court therefore "order[ed] the parties to meet and confer regarding the documents in dispute on the privilege log," after which the court would deal with privilege claims. Id. Several weeks later, the court in Fint v. Brayman Construction Corp., Case No. 5:17-cv-04043, 2018 U.S. Dist. LEXIS 103772, at *9 (S.D.W. Va. June 21, 2018), noted that its "local rule requires motions to compel [privileged documents, among other things] to be brought within thirty days after discovery answers are due." But the court relieved the plaintiff of that deadline – noting that defendant's amended privilege log "effectively restarted the thirty-day clock." Id.

Fortunately, corporations' local counsel normally will be aware of such local rules and the frequently important local "lore" about their courts' privilege assertion and challenge process.

Case Date Jurisdiction State Cite Checked
2018-06-21 Federal WV
Comment:

key case


Chapter: 55.1007
Case Name: Fint v. Brayman Construction Corp., Case No. 5:17-cv-04043, 2018 U.S. Dist. LEXIS 103772 (S.D.W. Va. June 21, 2018)
("The parties each assert one argument that may be dispatched with little discussion. Brayman argues that Plaintiff's four-month delay in raising a challenge to the privilege log constitutes a waiver under this district's local rules and justifies a denial of the motion to compel. Although Brayman is correct that the local rule requires motions to compel to be brought within thirty days after discovery answers are due, but are not served, or after answers are timely served, but are unsatisfactory, Brayman filed an amended privilege log on May 10, 2018. In essence, Brayman conceded that its original log was inadequate. Moreover, through its amended privilege log, Brayman changed the legal basis upon which it claimed protection from discovery for the withheld documents and effectively restarted the thirty-day clock. Plaintiff now challenges the merits of the amended privilege log. Therefore, Plaintiff's challenge to the amended log and associated motion to compel are timely.")

Case Date Jurisdiction State Cite Checked
2018-06-21 Federal WV

Chapter: 55.1007
Case Name: Scheller v. Williams Companies, Inc., Case No. CIV-17-632-M, 2018 U.S. Dist. LEXIS 96880, at *12 (W.D. Okla. June 1, 2018)
August 8, 2018 (PRIVILEGE POINT)

"Remember Courts' Privilege-Related Local Rules"

Lawyers familiar with abstract and even case-specific substantive privilege and work product-related principles must keep something else in mind. Many if not most courts have also adopted local rules that might affect the process under which those courts address privilege and work product issues.

In Scheller v. Williams Companies, Inc., Case No. CIV-17-632-M, 2018 U.S. Dist. LEXIS 96880, at *12 (W.D. Okla. June 1, 2018), the court explained that it was "unable to rule on any claims of privilege at this time" – because the parties had conducted their mandatory "meet and confer" discussion "prior to the production of [the pertinent party's] privilege log." The court therefore "order[ed] the parties to meet and confer regarding the documents in dispute on the privilege log," after which the court would deal with privilege claims. Id. Several weeks later, the court in Fint v. Brayman Construction Corp., Case No. 5:17-cv-04043, 2018 U.S. Dist. LEXIS 103772, at *9 (S.D.W. Va. June 21, 2018), noted that its "local rule requires motions to compel [privileged documents, among other things] to be brought within thirty days after discovery answers are due." But the court relieved the plaintiff of that deadline – noting that defendant's amended privilege log "effectively restarted the thirty-day clock." Id.

Fortunately, corporations' local counsel normally will be aware of such local rules and the frequently important local "lore" about their courts' privilege assertion and challenge process.

Case Date Jurisdiction State Cite Checked
2018-06-01 Federal OK
Comment:

key case


Chapter: 55.1007
Case Name: Scheller v. Williams Cos., Case No. CIV-17-632-M, 2018 U.S. Dist. LEXIS 96880 (W.D. Okla. June 1, 2018)
(declining to find a waiver based on a tardy log; "Subsequent to plaintiff filing his motion to compel, defendants supplemented their discovery responses and provided plaintiff a privilege log for those documents withheld based upon the attorney-client privilege and the work product doctrine. Plaintiff asserts that defendants have waived any privilege by failing to timely disclose and provide a log. Having reviewed the parties' submissions, the Court finds that defendants have not waived any privilege claims. Specifically, the Court finds that defendants' privilege log was not so untimely as to warrant a waiver of the attorney-client privilege or the work product doctrine."

Case Date Jurisdiction State Cite Checked
2018-06-01 Federal OK

Chapter: 55.1007
Case Name: Wilder v. World of Boxing LLC, 16 Civ. 4423 (ALC) (GWG), 2018 U.S. Dist. LEXIS 42059 (S.D.N.Y. March 14, 2018)
(in an opinion by Judge Gorenstein, finding the work product doctrine applicable, after analyzing the context and reading the withheld documents; "The WOB Parties contend that the Wilder Parties waived any work-product protection by identifying the emails only as attorney-client privilege protected and not as work-product protected in their privilege log. . . . While a specific identification is certainly required by Local Civil Rule 26.2(a) (requiring identification of 'the nature of the privilege (including work product) which is being claimed'), 'a district court has inherent authority to determine when to overlook or excuse a departure from its own local rules . . . .' Inasmuch as the Wilder Parties supplied the appropriate factual details about the documents in the privilege log and that no prejudice from the belated claim has inured to the WOB Parties, the Court will exercise its discretion to allow the claim of work-product protection.")

Case Date Jurisdiction State Cite Checked
2018-03-14 Federal NY

Chapter: 55.1007
Case Name: Stephens v. N.C. Dep't of Pub. Safety, 5:17-CV-30-BO, 2017 U.S. Dist. LEXIS 203082 (E.D.N.C. Dec. 11, 2017)
(finding that a litigant had been tardy in preparing a log, but not finding a waiver; "Plaintiff waived any objections to the production requests by her failure to respond timely to them. . . . Nevertheless, the court will permit her to assert proper claims of privilege (including, e.g., attorney-client privilege, work-product protection) in her response to the production requests. This is the only objection plaintiff may assert. To properly claim a privilege, plaintiff must, in addition to expressly asserting it in response to the particular production request involved, serve with her response a privilege log in conformance with Rule 26(b)(5)(A). Any claim of privilege shall meet the requirements for the privilege asserted. Failure to timely serve a duly signed privilege log meeting the requirements of Rule 26(b)(5)(A) shall be deemed a waiver of the privilege otherwise claimed.")

Case Date Jurisdiction State Cite Checked
2017-12-11 Federal NC

Chapter: 55.1007
Case Name: Polylok, Inc. v. Bear Onsite, LLC, Civ. A. No. 3:12-CV-00535-DJH-CHL, 2017 U.S. Dist. LEXIS 41960 (W.D. Ky. March 23, 2017)
("In sum, the Hornback Defendants refusal to provide a privilege log under these circumstances is inexcusable. Consequently, the waiver of the privilege is most certainly an option for the Court to consider. Nonetheless, the Court will give the Hornback Defendants one last opportunity to comply with Rule 26 and produce a privilege log within fourteen (14) days of this order. Anything less than full compliance by the Hornback Defendants will result in waiver of any privilege.")

Case Date Jurisdiction State Cite Checked
2017-03-23 Federal KY

Chapter: 55.1007
Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("Plaintiffs also argue that Fluidmaster has waived the attorney-client privilege with respect to the Lichtman Reports. This argument is based on the fact that Fluidmaster did not assert the attorney-client privilege with respect to these documents in its August 26, 2015 privilege log. Instead, Fluidmaster relied solely on the work product doctrine in that privilege log for these documents."; "The Court is not convinced that Fluidmaster did not act 'timely' in asserting the attorney-client privilege. More importantly, however, on the record now before the Court, there is no basis for concluding that Fluidmaster acted willfully, in bad faith, or with fault by not raising the attorney-client privilege with respect to these documents in its August 2015 privilege log. Even if Fluidmaster changed its mind, that would not be enough to justify the sanction Plaintiffs seek at this relatively early stage of this litigation. Further, Fluidmaster asserted the attorney-client privilege with respect to the Lichtman Reports when responding to Plaintiffs' request for production of documents and asserted the privilege in its revised privilege log, which was served several months after the August 2015 privilege log. In other words, Fluidmaster was not tardy in correcting or supplementing the record and no prejudice resulted to Plaintiffs because of Fluidmaster's initial oversight or position. The mere fact that Fluidmaster listed the wrong or a different privilege in its first privilege log should not result in the drastic sanction of compelling the production of otherwise privileged material.")

Case Date Jurisdiction State Cite Checked
2016-11-08 Federal IL

Chapter: 55.1007
Case Name: Obesity Research Inst., LLC v. Fiber Research Int'l, LLC, Case No. 15-cv-0595-BAS-MDD, 2016 U.S. Dist. LEXIS 32605, at *3-4 (S.D. Cal. Mar. 11, 2016)
(holding that a late log did not result in a waiver; "As an initial matter, the Court declines to find that Plaintiff has waived any claim of privilege or protection due to the alleged untimeliness of the service of Plaintiff's privilege log. Although Plaintiff could have moved with greater dispatch, considering the factors identified in Burlington Northern & Santa Fe Ry., v. United States Dist. Court, 408 F.3d 1142, 1149 (9th Cir. 2005), and applying them in 'context of a holistic reasonableness analysis,' the Court finds that Defendant has not been deprived of a meaningful opportunity to address Plaintiff's assertions of privilege and protection.")

Case Date Jurisdiction State Cite Checked
2016-03-11 Federal CA B 8/16

Chapter: 55.1007
Case Name: Wellin v. Wellin, C.A. No. 2:13-CV-1831-DCN, C.A. No. 2:13-CV-3595-DCN, C.A. No. 2:14-CV-4067-DCN, 2015 U.S. Dist. LEXIS 17481 (D.S.C. Dec. 4, 2015)
(declining to find that a litigant waived privilege protection despite a privilege log that was three months late; "In this case, there is no evidence of bad faith or unjustifiable delay on the part of the Defendants in connection with the preparation of the privilege log or its supplementation. Although approximately three months lapsed from the time the Requests for Production were initially answered and the privilege log was in fact produced, as noted in the Amended Report and Recommendation above referenced, this production has been made in connection with multiple cases and significant discovery requests by multiple parties. In view of the substantial number of documents that were and are subject to review in response to the identified Requests for Production, the absence of evidence of any bad faith or unjustifiable delay on the part of the Defendants in the preparation of the privilege log and its supplementation, and the absence of any showing of prejudice by the Plaintiff, I concluded a waiver of the attorney-client privilege is not justified.")

Case Date Jurisdiction State Cite Checked
2015-12-04 Federal SC

Chapter: 55.1007
Case Name: Swoboda v. Manders, Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015)
June 3, 2015 (PRIVILEGE POINT)

“Courts React Differently to Litigants' Failure to Properly Log Withheld Documents”

The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log, or failure to prepare an adequate log. Four decisions highlight the spectrum of courts' possible remedies.

In Apple Inc. v. Samsung Electronics Co., the court condemned defendant Samsung's privilege log as having provided "only generic statements" supported by a "'vague declaration'" — but explained that he had earlier "granted in camera review" rather than ordering the documents produced. Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015) (citation omitted). In Thermoset Corp. v. Building Materials Corp. of America, the court noted that defendant did not provide a supplemental privilege log until 38 days after producing responsive documents, but declined to find a waiver despite the tardiness — relying on a "'holistic reasonableness analysis.'" Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015) (citation omitted). In United States v. Biberstein, the court criticized respondent's privilege log as providing "little help to the Court" — because it lacked pertinent dates and contained only "boilerplate language." No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015). Noting that respondent "had numerous opportunities to meet his burden to demonstrate that the documents are privileged" (id.), the court ordered defendant to produce all the withheld documents (declining respondent's offer to allow the court's in camera review). In Swoboda v. Manders, the court condemned plaintiff's failure to prepare a log — bluntly ordering plaintiff to produce "any documents related to allegations in the plaintiff's complaint" (apparently even including "communications with counsel that [took] place after the filing of a law suit"). Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015).

Given the unpredictability of courts' reactions to nonexistent, tardy, or insufficient privilege logs, litigants should comply with local rules and customs — and familiarize themselves with the presiding judge's likely approach.

Case Date Jurisdiction State Cite Checked
2015-04-27 Federal LA
Comment:

key case


Chapter: 55.1007
Case Name: Thermoset Corp. v. Building Materials Corp. of America, Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015)
June 3, 2015 (PRIVILEGE POINT)

“Courts React Differently to Litigants' Failure to Properly Log Withheld Documents”

The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log, or failure to prepare an adequate log. Four decisions highlight the spectrum of courts' possible remedies.

In Apple Inc. v. Samsung Electronics Co., the court condemned defendant Samsung's privilege log as having provided "only generic statements" supported by a "'vague declaration'" — but explained that he had earlier "granted in camera review" rather than ordering the documents produced. Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015) (citation omitted). In Thermoset Corp. v. Building Materials Corp. of America, the court noted that defendant did not provide a supplemental privilege log until 38 days after producing responsive documents, but declined to find a waiver despite the tardiness — relying on a "'holistic reasonableness analysis.'" Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015) (citation omitted). In United States v. Biberstein, the court criticized respondent's privilege log as providing "little help to the Court" — because it lacked pertinent dates and contained only "boilerplate language." No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015). Noting that respondent "had numerous opportunities to meet his burden to demonstrate that the documents are privileged" (id.), the court ordered defendant to produce all the withheld documents (declining respondent's offer to allow the court's in camera review). In Swoboda v. Manders, the court condemned plaintiff's failure to prepare a log — bluntly ordering plaintiff to produce "any documents related to allegations in the plaintiff's complaint" (apparently even including "communications with counsel that [took] place after the filing of a law suit"). Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015).

Given the unpredictability of courts' reactions to nonexistent, tardy, or insufficient privilege logs, litigants should comply with local rules and customs — and familiarize themselves with the presiding judge's likely approach.

Case Date Jurisdiction State Cite Checked
2015-04-08 Federal FL
Comment:

key case


Chapter: 55.1007
Case Name: Thermoset Corp. v. Building Materials Corp. of America, Case No. 14-60268-Civ-Cohn/Seltzer, 2015 U.S. Dist. LEXIS 45924 (S.D. Fla. April 8, 2015)
(finding that defendant was not inappropriately tardy in filing a privilege log thirty-eight days after producing responsive documents; also finding that defendant's inadvertent production did not result in a waiver; "In Burlington [Burlington N. & Santa Fe. Ry. Co. v. United States Dist. Court for the Dist. Of Montana, 408 F.3d 1142 (9th Cir. 2005)], the Ninth Circuit rejected a per se rule that a failure to produce a privilege log within 30 days (that is, at the time a response to a document request is due), waives the privilege asserted. Instead, the Burlington Court set forth several factors to be applied 'in the context of a holistic reasonableness analysis,' using the 30-day period as a default guideline. . . . The relevant factors are: 'the degree to which the objection or assertion of privilege enables the litigant seeking discovery and the court to evaluate whether each of the withheld documents is privileged (where providing particulars typically contained in a privilege log is presumptively sufficient and boilerplate objections are presumptively insufficient); the timeliness of the objection and accompanying information about the withheld documents . . . ; the magnitude of the document production; and other particular circumstances of the litigation that make responding to discovery unusually easy . . . Or unusually hard.'"; "After carefully considering the parties' respective arguments and the totality of the Burlington factors, the Court does not find that the timing of GAF's production of its Supplemental Privilege Log was so unreasonable as to warrant the harsh sanction of waiver of the attorney-client privilege, which privilege has been described as 'a cornerstone of the entire judicial/legal system in this country.'")

Case Date Jurisdiction State Cite Checked
2015-04-08 Federal FL

Chapter: 55.1007
Case Name: Apple Inc. v. Samsung Electronics Co., Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015)
June 3, 2015 (PRIVILEGE POINT)

“Courts React Differently to Litigants' Failure to Properly Log Withheld Documents”

The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log, or failure to prepare an adequate log. Four decisions highlight the spectrum of courts' possible remedies.

In Apple Inc. v. Samsung Electronics Co., the court condemned defendant Samsung's privilege log as having provided "only generic statements" supported by a "'vague declaration'" — but explained that he had earlier "granted in camera review" rather than ordering the documents produced. Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015) (citation omitted). In Thermoset Corp. v. Building Materials Corp. of America, the court noted that defendant did not provide a supplemental privilege log until 38 days after producing responsive documents, but declined to find a waiver despite the tardiness — relying on a "'holistic reasonableness analysis.'" Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015) (citation omitted). In United States v. Biberstein, the court criticized respondent's privilege log as providing "little help to the Court" — because it lacked pertinent dates and contained only "boilerplate language." No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015). Noting that respondent "had numerous opportunities to meet his burden to demonstrate that the documents are privileged" (id.), the court ordered defendant to produce all the withheld documents (declining respondent's offer to allow the court's in camera review). In Swoboda v. Manders, the court condemned plaintiff's failure to prepare a log — bluntly ordering plaintiff to produce "any documents related to allegations in the plaintiff's complaint" (apparently even including "communications with counsel that [took] place after the filing of a law suit"). Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015).

Given the unpredictability of courts' reactions to nonexistent, tardy, or insufficient privilege logs, litigants should comply with local rules and customs — and familiarize themselves with the presiding judge's likely approach.

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal CA
Comment:

key case


Chapter: 55.1007
Case Name: United States v. Biberstein, No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015)
June 3, 2015 (PRIVILEGE POINT)

“Courts React Differently to Litigants' Failure to Properly Log Withheld Documents”

The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log, or failure to prepare an adequate log. Four decisions highlight the spectrum of courts' possible remedies.

In Apple Inc. v. Samsung Electronics Co., the court condemned defendant Samsung's privilege log as having provided "only generic statements" supported by a "'vague declaration'" — but explained that he had earlier "granted in camera review" rather than ordering the documents produced. Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015) (citation omitted). In Thermoset Corp. v. Building Materials Corp. of America, the court noted that defendant did not provide a supplemental privilege log until 38 days after producing responsive documents, but declined to find a waiver despite the tardiness — relying on a "'holistic reasonableness analysis.'" Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015) (citation omitted). In United States v. Biberstein, the court criticized respondent's privilege log as providing "little help to the Court" — because it lacked pertinent dates and contained only "boilerplate language." No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015). Noting that respondent "had numerous opportunities to meet his burden to demonstrate that the documents are privileged" (id.), the court ordered defendant to produce all the withheld documents (declining respondent's offer to allow the court's in camera review). In Swoboda v. Manders, the court condemned plaintiff's failure to prepare a log — bluntly ordering plaintiff to produce "any documents related to allegations in the plaintiff's complaint" (apparently even including "communications with counsel that [took] place after the filing of a law suit"). Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015).

Given the unpredictability of courts' reactions to nonexistent, tardy, or insufficient privilege logs, litigants should comply with local rules and customs — and familiarize themselves with the presiding judge's likely approach.

Case Date Jurisdiction State Cite Checked
2015-03-23 Federal NC
Comment:

key case


Chapter: 55.1007
Case Name: Williams v. Bridgeport Music, Inc., 14 Misc. 73-P1, 2014 U.S. Dist. 62056 (S.D.N.Y. May 5, 2014)
("While waiting months to file a motion to quash without submitting a privilege log does not constitute reasonable time and can be waiver of privilege . . . the Gayes waited only 19 days after the filing of their objections to the Subpoena before submitting a privilege log. Moreover, the Gayes were concerned as to the disclosure of their retention of Ferrara as a consulting expert, a point of law that Counter-Claimants believed insulated them from having to provide a privilege log.")

Case Date Jurisdiction State Cite Checked
2014-05-05 Federal NY

Chapter: 55.1007
Case Name: H&L Assocs. of Kan. City, LLC v. Midwestern Indem. Co., Case No. 12-2713-EFM-DJW, 2013 U.S. Dist. LEXIS 153252, at *15, *17-18 (D. Kan. Oct. 25, 2013)
("Under Rule 26(b)(5)(A), the privilege log is due '[w]hen a party withholds information.' For a party served with a request for production, Rule 34(b)(2)(A) requires that the party 'must respond within 30 days after being served.' Thus, the privilege log would be due at the time the party's responses to requests for production are due as that would be the time when the party is deemed to have withheld responsive information. For this case, Defendant's privilege log would have been due at the time it produced the redacted documents or when it withheld or failed to produce documents responsive to the discovery requests."; "In the present case, although Defendant did not provide a privilege log at the time it produced the redacted documents, it did provide a privilege log on July 5, 2013, a little more than a month after it asserted the privilege/protection. Also, the privilege log entries for the claim activity log redactions, along with the unredacted information on the claim activity log, provide sufficient information for Plaintiff and the Court to assess the privilege/protection being claimed. Thus, Plaintiff was notified that Defendant had withheld information on the claim activity log at the time it received the redacted documents. The Court declines to find waiver based upon the untimely submission of a privilege log under these circumstances.")

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal KS B 5/14

Chapter: 55.1007
Case Name: H&L Assocs. of Kan. City, LLC v. Midwestern Indem. Co., Case No. 12-2713-EFM-DJW, 2013 U.S. Dist. LEXIS 153252, at *23 (D. Kan. Oct. 25, 2013)
("Rather than deeming the privilege/protection waived, the Court will instead order Defendant to serve an amended privilege log with respect to redacted pages identified H&L 000000037 through 000000224 (the last eight entries on the privilege log) within 30 days of the date of this Memorandum and Order.")

Case Date Jurisdiction State Cite Checked
2013-10-25 Federal KS B 5/14

Chapter: 55.1007
Case Name: Viteri-Butler v. Univ. of Cal., Case No. CV 12-02651 PJH (KAW), 2013 U.S. Dist. LEXIS 142430, at *20 (N.D. Cal. Sept. 30, 2013)
("[T]he College has not included detail supporting the privileges asserted, such as affirmations that no authorized persons have received the communications described in the privilege log, adequately specified the dates on which documents were prepared and sent to persons other than the document's author, or clearly identified the specific individuals who received those documents."; ordering an amended log within twenty-one days)

Case Date Jurisdiction State Cite Checked
2013-09-30 Federal CA B 5/14

Chapter: 55.1007
Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWD, 2011 U.S. Dist. LEXIS 51028, at *14 (E.D. Va. May 12, 2011)
("[T]his Court determines that the privilege should not be waived despite AIGCEF's failure to meet the deadline for submitting a privilege log.")

Case Date Jurisdiction State Cite Checked
2011-05-12 Federal VA B 3/16

Chapter: 55.1008
Case Name: Viamedia, Inc. v. Comcast Corporation, Case No. 16-cv-5486, 2017 U.S. Dist. LEXIS 101852 (N.D. Ill. June 30, 2017)
("Defendants argue that Viamedia's assertion of work-product protection was untimely with respect to nineteen of the documents because in a May 2016 privilege log submitted to the DOJ, Viamedia claimed only attorney-client privilege with respect to those documents, but in May 2017, about two months after Viamedia had supplemented that log, Viamedia reclassified seventeen of those documents as also protected by the work-product doctrine. . . . While Viamedia should have taken greater care in preparing its privilege logs, the Court will not impose the harsh sanction of waiver based on Viamedia's conduct, particularly because of the large number of documents involved in this case and, significantly, because the Court cannot conclude that Defendants were unfairly prejudiced."; "Court has reviewed in camera the disputed documents to which Defendants refer, and it appears the attorneys who prepared Viamedia's privilege logs simply made a mistake in indicating that these documents do not relate possible litigation between Viamedia and Defendants. The Court therefore denies Defendants' motion with respect to the documents provided to litigation funding firms.")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal IL

Chapter: 55.1008
Case Name: NLRB v. NPC International, Inc., 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017)
("Although NPC should have known that its conclusory document descriptions were inadequate to allow the NLRB and the Court to assess its claims of attorney-client privilege and work-product protection, the Court does not find that this is an appropriate case in which to treat the protections as waived. There is no evidence that Respondent acted in bad faith. With respect to the timing of the log, as discussed above, the Court has already rejected NPC's contention that it had no duty to produce a privilege log at the administrative level. However, Respondent's belief in that respect appears grounded in its good faith reliance on its interpretation of Detroit Newspapers. Rather, the Court will require NPC to submit a supplemental privilege log that remedies the shortcomings addressed in this order.")

Case Date Jurisdiction State Cite Checked
2017-02-16 Federal TN

Chapter: 55.1008
Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, Case No. 3:13-cv-14207, Case No. 3:13-cv-20976, 2015 U.S. Dist. LEXIS 115425 (S.D. W.Va. Aug. 28, 2015)
(ordering a supplemental log, because the defendant used boilerplate log language; "[F]ederal courts have found privilege logs to be sufficiently detailed where the logs contained the privilege asserted for each document along with the document date, author, recipient, type, and a description such as '[e]mail string containing confidential communications with outside counsel and in-house counsel regarding employee benefits and labor issues in [named] transactions,' or '[m]emo made at direction of counsel and sent to counsel for the purpose of seeing [sic] legal advice regarding medical procedure.'")

Case Date Jurisdiction State Cite Checked
2015-08-28 Federal WV

Chapter: 55.1008
Case Name: United States v. Louisiana, Civ. A. No. 11-470-JWD-RLB, 2015 U.S. Dist. LEXIS 100238 (M.D. La. July 31, 2015)
("The Court therefore finds DHH acted unreasonably in preparing the privilege log and asserting its claims of privilege. Even still, the Court is reluctant to find a complete waiver of privilege as to all of the documents described in DHH's privilege log. This is because the Court has only done an in-camera review of a minimal sampling of the documents being withheld -- 40 out of more than 13,000 documents. And while these 40 documents are exemplary of the 4 categories of entries challenged by the United States, the United States has only identified 10 contested entries within each of the 4 categories. The Court is therefore unaware of the total amount of entries and documents within each category and can only speculate as to the sufficiency of the representative sample provided of each category.")

Case Date Jurisdiction State Cite Checked
2015-07-31 Federal LA

Chapter: 55.1008
Case Name: Bacchi v. Massachusetts Mutual Life Insurance Company, Civ. A. No. 12-cv-11280-DJC, 2015 U.S. Dist. LEXIS 80552 (D. Mass. June 22, 2015)
("[E]ven assuming that the standard practice among the bar favors providing a fully adequate stand-alone log, the Court is not inclined to order the defendant to create a new, more robust log here where doing so would delay the completion of discovery, and where the plaintiff's unexplained delay in raising this issue timely has at least helped to exacerbate what in all likelihood could have been an easily resolvable discovery matter.")

Case Date Jurisdiction State Cite Checked
2015-06-22 Federal MA

Chapter: 55.1008
Case Name: Whitney v. Tallgrass Beef Company LLC, Case No. 13 C 7322, 2015 U.S. Dist. LEXIS 78956 (N.D. Ill. June 18, 2015)
("An inadequate privilege log can give rise to a waiver of a privilege, especially when it violates a court order. The Court does not make that finding in this case on two grounds. First, such a waiver constitutes a severe sanction that requires a showing of bad faith.")

Case Date Jurisdiction State Cite Checked
2015-06-18 Federal IL

Chapter: 55.1008
Case Name: Sedgwick Claims Management Services, Inc. v. Feller, Case No. 5D15-217, 2015 Fla. App. LEXIS 7286 (Fla. App. 5d May 15, 2015)
("[T]he trial judge erred by finding that the privilege was waived by counsel's filing of a privilege log which the judge viewed as insufficient due to its lack of detail. The log was not produced in response to a trial court order and could have been amended to cure any defects had counsel been given that opportunity. Although a waiver of privileges can ultimately serve as a sanction for failing to follow discovery rules, 'Florida's courts generally recognize that an implicit waiver of an important privilege as a sanction for a discovery violation should not be favored, but resorted to only when the violation is serious.'")

Case Date Jurisdiction State Cite Checked
2015-05-15 State FL

Chapter: 55.1008
Case Name: In re Infinity Business Group, Inc., Bankruptcy Case No. 10-06335-jw, Adv. Proc. No. 12-80208-jw, Ch. 7, 2015 Bankr. LEXIS 1560 (D.S.C. April 3, 2015)
(in a privilege log; "[T]he Trustee agreed at the hearing to revise the privilege logs and to confer and resolve any deficiencies in the logs."; "Considering the substantial number of documents subject to review in response to the MK Defendants' broad request for production, the absence of evidence of bad faith or unjustifiable delay on the part of the Trustee in connection with his preparation of the two original privilege logs, and the Trustee's agreement to provide revised privilege logs to satisfy these requirements, the Court is not inclined to find a waiver of the attorney-client privilege due to the alleged insufficiency of the privilege logs at this time.")

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal SC

Chapter: 55.1008
Case Name: Progressive Cas. Ins. Co. v. FDIC, 298 F.R.D. 417, 421 (N.D. Iowa 2014)
(holding that a sufficient log had not resulted in a waiver; "If a party may maintain its claim of privilege even after actually producing privileged information to its opponent, I am not going to find waiver simply because I find that the party did not provide quite enough information in a privilege log. That is particularly true where, as here, there is no indication that the party acted in bad faith.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal IA B 8/14

Chapter: 55.1008
Case Name: CresCom Bank v. Terry, Case No. 2:12-cv-00063-PMD, 2013 U.S. Dist. LEXIS 106994, at *6-7 (D.S.C. July 31, 2013)
("Although CresCom failed to include entries for these documents in the privilege log, it did produce the documents in a redacted state, which put Terry on notice that CresCom was withholding some information in those documents. From the face of the documents, it is apparent that the documents are emails and that the redacted portions involve communications to and from CresCom's counsel. Therefore, even without an entry in the privilege log, the documents themselves provide Terry with enough information to identify the nature of the documents and to assess CresCom's claim that the redacted portions are privileged.")

Case Date Jurisdiction State Cite Checked
2013-07-31 Federal SC B 12/13

Chapter: 55.1008
Case Name: SGD Eng'g Ltd. v. Lockheed Martin Corp., Case No. 2:11-cv-2493-DGC, 2013 U.S. Dist. LEXIS 74186, at *30 (D. Ariz. Apr. 17, 2013)
("Although Lockheed's descriptions of the basis for its privilege claims are not sufficient to make a confident ruling on whether the privilege claims are valid, the descriptions are detailed enough to satisfy Rule 26(b)(5). . . . Lockheed has therefore made a prima facie showing needed for its privilege claims.")

Case Date Jurisdiction State Cite Checked
2013-04-17 Federal AZ B 7/13

Chapter: 55.1008
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 638-39 (D. Nev. 2013)
("While Plaintiff argues that it has taken months of prodding to get this far, the court does not perceive that Bard has necessarily been unreasonable or dilatory. Bard has undertaken a protracted review of an exceedingly large number of documents and has seemingly attempted to address the deficiencies asserted by Plaintiff by providing supplemental privilege logs."; "[T]he court cannot conclude that Bard's privilege logs operate as a waiver of the attorney-client privilege or work product doctrine.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NV B 3/14

Chapter: 55.1008
Case Name: Berks Behavioral Health LLC v. St. Joseph Reg'l Health Network, 500 B.R. 711, 718 (E.D. Pa. 2013)
("Defendants argue that Plaintiff's failure provide a privilege log earlier than 15 months after first making the objection constitutes a waiver of the privilege. Plaintiff responds that it withheld the documents on grounds other than just privilege. In other words, says Plaintiff, no privilege log is required for documents not discoverable for other reasons. For its part, the Court considers waiver to be too harsh a punishment. The Plaintiff having since produced a privilege log, the Court dismisses the claim of waiver.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal PA B 5/14

Chapter: 55.1008
Case Name: Galvan v. Miss. Power Co., Civ. A. No. 1:10CV159-KS-MTP, 2012 U.S. Dist. LEXIS 165558, at *5 (S.D. Miss. Nov. 20, 2012)
(holding that a root cause analysis did not deserve work product protection, because the party did not support the work product claim; "While it is well within the court's discretion to find a waiver of MPC's asserted privileges for failing to timely produce a privilege log, the court declines to do so.")

Case Date Jurisdiction State Cite Checked
2012-11-20 Federal MS B 7/13

Chapter: 55.1008
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013, at *160, 160-61, 161 (S.D. Ohio Nov. 13, 2012)
("[P]laintiffs assert that the log still lacks basic information for certain entries, such as the author, recipient, and creation date for documents and fails to provide requisite information, e.g., that a document was created in anticipation of litigation. Plaintiffs request that the Court order defendants to provide a log which adheres to the requirements enunciated in the August 2011 Order."; "In response, defendants contend that the log comports with the requirements of Fed. R. Civ. P. 26, which permits the omission of certain details when the volume of the documents withheld would make inclusion unduly burdensome. Defendants assert that they spent significant time revising the log in order to comply with the August 2011 Order and, with the exception of a small minority of entries, have included all requisite details. In those instances where certain information is not facially apparent, such as the author of a document, defendants have provided the names of a custodian and other descriptive details which they claim provide plaintiffs sufficient information to analyze the privilege claims."; "After spending a substantial amount of time reviewing and referring to defendants' privilege log while undertaking the instant in camera review, the undersigned finds that the current version of the log is sufficient and declines to require defendants to produce yet another privilege log.")

Case Date Jurisdiction State Cite Checked
2012-11-13 Federal OH B 7/13

Chapter: 55.1008
Case Name: Smith v. James C. Hormel Sch. of the Va. Inst. of Autism, Civ. A. No. 3:08cv00030, 2010 U.S. Dist. LEXIS 95668, at *19-20 (W.D. Va. Sept. 14, 2010)
("As was the court in Welch v. Eli Lilly & Co., No. 1:06-cv-00641, 2009 U.S. Dist. LEXIS 21417, 2009 WL 700199 (S.D. Ind. Mar. 16, 2009), the undersigned is 'mindful of the cautionary tone of relevant authority' when it comes to the issue of waiver. 2009 U.S. Dist. LEXIS 21417, [WL] at *15. The court is also mindful of the broad, potential consequences of privilege waiver. Given these circumstances, the court declines to find the Smiths waived their attorney-client privilege by failing to produce a privilege log in response to VIA's [defendant] 2009 discovery requests. The Smiths' discovery violation simply does not warrant such an extreme sanction. See Cafe Asia, 256 F.R.D. at 251; Carlson v. Freightliner LLC, 226 F.R.D. 343, 363 (D. Neb. 2004) ('Upon weighing the severity of waiving the privilege afforded attorney-client communications and opinion work product against the conduct of the defendant in failing to promptly raise these privileges, I conclude these privileges were not waived under the specific facts of this case.'), aff'd, 226 F.R.D. 385 (D. Neb. 2004). Accordingly, VIA's motion to compel (Docket #222) is DENIED as regards the twenty-one (21) Katzerman emails.")

Case Date Jurisdiction State Cite Checked
2010-09-14 Federal VA B 3/16

Chapter: 55.1009
Case Name: Heartland Consumer Products LLC v. DineEquity, Inc., No. 1:17-cv-01035-SEB-TAB, 2018 U.S. Dist. LEXIS 124654 (S.D. Ind. July 25, 2018)
("Defendants have made clear in their motion that the three emails are privileged, but they were improperly logged due to administrative oversights. The Court does not find waiver of privilege to be appropriate when it is based on a technical error, and the party has since shown the document to be privileged.")

Case Date Jurisdiction State Cite Checked
2018-07-25 Federal IN

Chapter: 55.1009
Case Name: Greater N.Y. Taxi Assoc. v. City of New York, 13-cv-3089 (VSB) (RWL), 2018 U.S. Dist. LEXIS 80069 (S.D.N.Y. May 8, 2018)
(recognizing that the attorney-client privilege could protect government employee-to-employee communications; "[T]he fact that a communication was made between government employees without the presence of an attorney does not necessarily remove the privilege. If the employees were, for example, sharing legal advice provided by counsel, their communications would be privileged. Moreover, as Defendants point out, the individual log entries in their categorical log contain notations that correlate to more detailed descriptions. . . . For instance, the notation 'Litigation — TOT Litigation' is defined in the categorical log index as: 'Documents discussing, reflecting or requesting legal advice or reflecting work prepared at the direction of counsel, regarding the various legal challenges to the Taxi of Tomorrow project, including, but not limited to the preparation of defenses thereto, analysis of the rulings by Justice Peter Moulton and Justice Shlomo Hagler, and strategy in response to such rulings.'. . . In short, the log for each document does identify a legal basis for the assertion of privilege."; "That said, to the extent they have not already done so, Plaintiffs should identify those specific documents sent between non-attorneys for which they have a colorable basis for concern, and then request that Defendants provide more detailed information about the legal basis for the privilege for those documents.")

Case Date Jurisdiction State Cite Checked
2018-05-08 Federal NY

Chapter: 55.1009
Case Name: Lubritz v. AIG Claims, Inc., Case No. 2:17-cv-02310-APG-NJK, 2018 U.S. Dist. LEXIS 65951 (D. Nev. April 18, 2018)
("As Plaintiff's counsel correctly argued at the hearing, however, the privilege log identified only work-product protection as the basis for redaction, rather than attorney-client privilege. . . . The Court does not find this shortcoming sufficient to find an assertion of attorney-client privilege waived in this case. Cf. Butler Mfg. Co. v. Americold Corp., 148 F.R.D. 275, 277 (D. Kan. 1993) (finding deficiency in privilege log not sufficient cause to require disclosure). Instead, the Court orders Defendant to provide a supplemental privilege log correctly listing all bases on which it has withhold the redacted information. Such supplemental privilege log shall be provided within 14 days of this order.")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal NV
Comment:

Key Case


Chapter: 55.1009
Case Name: Terry v. Register Tapes Unlimited, Inc., No. 2:16-cv-0806-WBS-AC, 2018 U.S. Dist. LEXIS 50846 (E.D. Cal. March 27, 2018)
(finding that defendant's log was inadequate, and ordering a better log; "Because the privilege log fails to provide the information needed to determine whether the privilege applies to any particular communication (or even to the class of communications identified), it fails to satisfy Rule 26(b)(5). As to this class of documents, defendant will be provided the opportunity to submit a revised privilege log to plaintiff. The revised privilege log must comply with Rule 26(b)(5) and, together with any supporting declaration, provide the information necessary to make a prima facie showing that any withheld documents constitute confidential attorney-client communications: identification of the communication by type and date; the identities of all parties to the communication; and the existence of an attorney-client relationship between the parties to the communication. Id. at 665. Assuming this showing is made, the court will uphold the assertion of privilege regardless of the content of the document(s) unless plaintiff demonstrates, on a motion to compel, that a particular communication was not confidential or the privilege was waived or otherwise does not apply. Id.")

Case Date Jurisdiction State Cite Checked
2018-03-27 Federal CA

Chapter: 55.1009
Case Name: Center for Individual Rights v. Chevaldina, Case No. 16-20905-Civ.KING/TORRES, 2017 U.S. Dist. LEXIS 195871 (S.D. Fla. Nov. 29, 2017)
(finding that non-party's failure to prepare a privilege log did not result in waiver, but ordering a party to prepare a log; "A proper privilege log should contain the following information for each withheld document: '(1) the name and job title or capacity of the author of the document; (2) the name and job title or capacity of each recipient of the document; (3) the date the document was prepared and, if different, the date(s) on which it was sent to or shared with persons other than the author(s); (4) the title and description of the document; (5) the subject matter addressed in the document; (6) the purpose(s) for which it was prepared or communicated; and (7) the specific basis for the claim that it is privileged.'")

Case Date Jurisdiction State Cite Checked
2017-11-29 Federal FL

Chapter: 55.1009
Case Name: Center for Individual Rights v. Chevaldina, Case No. 16-20905-Civ.KING/TORRES, 2017 U.S. Dist. LEXIS 195871 (S.D. Fla. Nov. 29, 2017)
(finding that non-party's failure to prepare a privilege log did not result in waiver, but ordering a party to prepare a log; "However, we are not persuaded that GSG's failure to produce a timely privilege log constitutes a waiver given the circumstances presented. While Plaintiff is correct that a waiver of privilege may occur when a privilege log is not timely produced, courts have generally found a waiver to be a harsh sanction especially in the absence of any prejudice to the opposing party."; "GSG filed its objections to the subpoena on August 31, 2017 and supplemented its response on October 13, 2017. While approximately six weeks have now passed since GSG's latest response, we cannot find that the failure to produce a privilege log is so late and prejudicial that it waives all of the applicable privileges, if any, with respect to the documents requested. Because of the small amount of time that has passed, the lack of prejudice to Plaintiff, and the fact that a waiver of privilege may occur without a timely privilege log, we find that GSG's actions do not rise to the level of a waiver in this case.")

Case Date Jurisdiction State Cite Checked
2017-11-29 Federal FL

Chapter: 55.1009
Case Name: Nucap Industries Inc. v. Robert Bosch LLC, No. 15 CV 2207, 2017 U.S. Dist. LEXIS 135288 (N.D. Ill. Aug. 23, 2017)
("Before addressing the crux of Bosch's motion, the court notes that the privilege log included with Nucap's in camera submission describes nearly every one of the hundreds of documents listed therein using the same generic descriptor: 'Communication reflecting legal advice regarding anticipated litigation with Bosch.'. . . In the course of the court's limited in camera review of Nucap's documents, this boilerplate characterization was at times inaccurate and generally unhelpful in guiding the court's review. . . . In addition to revising its document production in accordance with this decision, Nucap is ordered to revise its privilege log to meet the requirements of Rule 26(b)(5). The parties are admonished that to the extent the court is required to resolve additional discovery disputes relating to privilege, it will rely on the parties' privilege logs to determine whether privilege claims should be upheld.")

Case Date Jurisdiction State Cite Checked
2017-08-23 Federal IL

Chapter: 55.1009
Case Name: Viamedia, Inc. v. Comcast Corporation, Case No. 16-cv-5486, 2017 U.S. Dist. LEXIS 101852 (N.D. Ill. June 30, 2017)
("Defendants argue that Viamedia's assertion of work-product protection was untimely with respect to nineteen of the documents because in a May 2016 privilege log submitted to the DOJ, Viamedia claimed only attorney-client privilege with respect to those documents, but in May 2017, about two months after Viamedia had supplemented that log, Viamedia reclassified seventeen of those documents as also protected by the work-product doctrine. . . . While Viamedia should have taken greater care in preparing its privilege logs, the Court will not impose the harsh sanction of waiver based on Viamedia's conduct, particularly because of the large number of documents involved in this case and, significantly, because the Court cannot conclude that Defendants were unfairly prejudiced."; "Court has reviewed in camera the disputed documents to which Defendants refer, and it appears the attorneys who prepared Viamedia's privilege logs simply made a mistake in indicating that these documents do not relate possible litigation between Viamedia and Defendants. The Court therefore denies Defendants' motion with respect to the documents provided to litigation funding firms.")

Case Date Jurisdiction State Cite Checked
2017-06-30 Federal IL

Chapter: 55.1009
Case Name: Waymo LLC v. Uber Technologies, Inc., Case No. 17-cv-00939-WHA-(JSC), 2017 U.S. Dist. LEXIS 98604 (N.D. Cal. June 26, 2017)
("Uber must again review and amend the log. The first step is to carefully review every entry through April 11, 2016. If a document was shared with anyone from the joint defense group, and thus discoverable under the Court's MTC Order, the log entry must reflect with whom the document was shared and identify it as a document to be produced. Further, if a document was not shared among the joint defense group, then it should not be designated as 'confidential information' and the log must be so amended. Further, Uber's log must explain why it is noting a document as 'produce in part' rather than 'produce in full.' Uber's amended log must be produced to Waymo by June 30, 2017.")

Case Date Jurisdiction State Cite Checked
2017-06-26 Federal CA

Chapter: 55.1009
Case Name: Dyson, Inc. v. Sharkninja Operating LLC, 1:14-cv-0779, 2017 U.S. Dist. LEXIS 52074 (N.D. Ill. April 5, 2017)
(rejecting plaintiffs' request for a Special Master; finding that defendant made predictable mistakes in withholding and logging documents, and would have to re-review its withholding and log entries; "[T]he Court orders SharkNinja to undertake additional review of all Weekly Updates it has withheld and produce those documents with more targeted redactions that mirror what the Court has allowed in this order. The Weekly Updates were regularly redacted too aggressively or improperly withheld. From the Court's review, this problem does indeed appear to be a systematic over-designation of the Weekly Updates based on attorneys being copied on the email. Therefore, the Court orders SharkNinja to review all Weekly Updates that it withheld and/or redacted to ensure that they have been appropriately withheld and/or redacted.")

Case Date Jurisdiction State Cite Checked
2017-04-05 Federal IL

Chapter: 55.1009
Case Name: NLRB v. NPC International, Inc., 13-0010, 2017 U.S. Dist. LEXIS 23138 (W.D. Tenn. Feb. 16, 2017)
("Although NPC should have known that its conclusory document descriptions were inadequate to allow the NLRB and the Court to assess its claims of attorney-client privilege and work-product protection, the Court does not find that this is an appropriate case in which to treat the protections as waived. There is no evidence that Respondent acted in bad faith. With respect to the timing of the log, as discussed above, the Court has already rejected NPC's contention that it had no duty to produce a privilege log at the administrative level. However, Respondent's belief in that respect appears grounded in its good faith reliance on its interpretation of Detroit Newspapers. Rather, the Court will require NPC to submit a supplemental privilege log that remedies the shortcomings addressed in this order.")

Case Date Jurisdiction State Cite Checked
2017-02-16 Federal TN

Chapter: 55.1009
Case Name: N.J. Manufacturers Ins. Co. v. Brady, Civ. A. No. 3:15-CV-02236, 2017 U.S. Dist. LEXIS 8268 (M.D. Pa. Jan. 20, 2017)
("NJM must supplement its log to include the specific sender and recipient information for the emails listed in the Curtin & Heefner file, and the names and titles of the specific person(s) who prepared the work product being withheld. . . . Additionally, the descriptions are too vague for the Court to find that NJM has met its burden of proving that each element of the privilege is satisfied. NJM must provide more detailed descriptions explaining the contents of the documents withheld in the Curtin & Heefner file.")

Case Date Jurisdiction State Cite Checked
2017-01-20 Federal PA

Chapter: 55.1009
Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("Plaintiffs also argue that Fluidmaster has waived the attorney-client privilege with respect to the Lichtman Reports. This argument is based on the fact that Fluidmaster did not assert the attorney-client privilege with respect to these documents in its August 26, 2015 privilege log. Instead, Fluidmaster relied solely on the work product doctrine in that privilege log for these documents."; "The Court is not convinced that Fluidmaster did not act 'timely' in asserting the attorney-client privilege. More importantly, however, on the record now before the Court, there is no basis for concluding that Fluidmaster acted willfully, in bad faith, or with fault by not raising the attorney-client privilege with respect to these documents in its August 2015 privilege log. Even if Fluidmaster changed its mind, that would not be enough to justify the sanction Plaintiffs seek at this relatively early stage of this litigation. Further, Fluidmaster asserted the attorney-client privilege with respect to the Lichtman Reports when responding to Plaintiffs' request for production of documents and asserted the privilege in its revised privilege log, which was served several months after the August 2015 privilege log. In other words, Fluidmaster was not tardy in correcting or supplementing the record and no prejudice resulted to Plaintiffs because of Fluidmaster's initial oversight or position. The mere fact that Fluidmaster listed the wrong or a different privilege in its first privilege log should not result in the drastic sanction of compelling the production of otherwise privileged material.")

Case Date Jurisdiction State Cite Checked
2016-11-08 Federal IL

Chapter: 55.1009
Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("Plaintiffs correctly note that, while Fluidmaster listed Lichtman as 'Legal Personnel in Communication' and described the documents at issue as having been 'prepared by counsel,' Fluidmaster did not put any information in the 'From,' 'To,' 'CC,' and 'BCC' columns of its privilege log when describing documents FMPRIV_00002-00005. Plaintiffs claim that this lack of information renders the privilege log deficient and impedes their ability to assess whether any privilege may have been waived. Technically, Plaintiffs are correct. Fluidmaster does not address this issue in its reply brief. Based on context, the Court speculates that Lichtman or someone working with her or under her direction prepared interview memos addressed to 'the File' or something similar after they spoke with Fluidmaster's employees. But that is conjecture. And, as the Court noted earlier, Fluidmaster's description of these documents on its privilege log is a bit vague and only minimally sufficient to invoke the attorney-client privilege in the first place. Therefore, on the present record, Plaintiffs are correct that Fluidmaster has not met its burden to show these documents are privileged against production. And, for example, if the reports were created as Fluidmaster says they were but were shared with someone not within the attorney-client privilege, then the privilege potentially would be waived and Plaintiffs would be entitled to see them. There is no way to know that from the entries on the log as it now stands."; "Therefore, Fluidmaster's Motion for Protective Order will be denied as to the Lichtman Reports unless Fluidmaster cures the deficiency with its privilege log by November 22, 2016, which is 14 days from the date of this Memorandum Opinion and Order.")

Case Date Jurisdiction State Cite Checked
2016-11-08 Federal IL

Chapter: 55.1009
Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("In addition, Fluidmaster's description of these documents on its privilege log is unhelpfully vague. Its descriptions vary from 'Information prepared by counsel re: Aggregate data relating to product liability claims'. . . to 'Document prepared in anticipation of arbitration or litigation re: Aggregate data relating to product liability claims for litigation strategy from outside counsel at Howrey'. . . to 'Document prepared in anticipation of arbitration or litigation re: Work product presentation prepared by Joanne Lichtman (Outside Counsel) of Howrey providing status and summary of claims; Aggregate data relating to product liability claims for use in litigation strategy.'. . . Neither the Court nor Plaintiffs can draw an accurate picture of these documents or what they may contain based on these descriptions. Plaintiffs argue that these documents are nothing more than aggregate claims data that are not protected from production in any event. Fluidmaster, on the other hand, argues that even if the documents contain aggregate claims data, they still are protected by the attorney-client privilege and work product doctrine because of the way in which the documents were created and communicated to counsel. The Court does not have enough information on this record to determine which party has the better argument.'"; "Plaintiffs say the only way the Court can decide whether these documents should be produced is by reviewing them in camera. That very well may be true. A first step, though, is for Fluidmaster to provide the basic information that is missing from its privilege log in terms of who created the documents and to whom they were communicated, along with a better description of what the documents contain and the context in which the were created. As noted above, Fluidmaster also has the option of producing the documents for in camera review if it believes that would advance its cause. In the Court's view, however, production of a large stack of spreadsheets for the Court's review in camera without additional information about context that would assist the Court and Plaintiffs in evaluating the applicability of any claimed privilege would not be helpful in and of itself. It may be, however, that Plaintiffs are correct that the only way the Court properly can evaluate these documents is by reviewing them in camera and the Court can cross that bridge if and when necessary."; "Accordingly, if Fluidmaster can correct the deficiencies noted with respect to its privilege log, it should do so by November 22, 2016. If Fluidmaster wants to submit the documents for in camera review, it should do so within the same period of time.")

Case Date Jurisdiction State Cite Checked
2016-11-08 Federal IL

Chapter: 55.1009
Case Name: Romero v. Allstate Ins. Co., No. 01-3894 Consolidated with: Nos. 01-6764,03-6872,15-1017,15-1049,15-1190,15-2602,15-2961,15-3047, 2016 U.S. Dist. LEXIS 153142 (E.D. Pa. Nov. 4, 2016)
("Plaintiffs contend that Allstate has waived its right to assert work product protection as to 'at least 20 entries' in its most recent Privilege Log by failing to assert it in two earlier versions of the log. . . . Given the voluminous document production in these consolidated actions and the scope of Allstate's Privilege Log, the Court does not find that Allstate's delay in asserting work product protection regarding a relatively small number of documents warrants the ultimate sanction of waiver. Accordingly, Plaintiffs' request that work product protection be deemed waived is denied.")

Case Date Jurisdiction State Cite Checked
2016-11-04 Federal PA

Chapter: 55.1009
Case Name: Johnson v. Serenity Transportation, Inc., Case No. 15-cv-02004-JSC, 2016 U.S. Dist. LEXIS 149867 (N.D. Cal. Oct. 28, 2016)
("[T]hat privilege log is patently inadequate as it does not contain enough information to permit Plaintiff or the Court to evaluate whether the privilege applies. Instead, the log states that all three emails are 'protected by the attorney-client privilege and attorney work product protections[,]' includes dates (where applicable) and names -- which may be the sender and recipient, but that is not clear either -- and no further information. . . . There is no indication of the content of the emails or whether either the sender or recipient is an attorney. (Id.)"; "The Court declines Plaintiff's invitation to find waiver here, where the dispute appears to turn on an insufficient log regarding only three documents and where it appears that the parties have not yet met and conferred on this issue, contrary to the requirements of the Court's Standing Order. Instead, the Court ORDERS SCI to produce an adequate privilege log by November 4, 2016 for every responsive document withheld on privilege grounds.")

Case Date Jurisdiction State Cite Checked
2016-10-28 Federal CA

Chapter: 55.1009
Case Name: Ferring B.V. v. FERA Pharmaceuticals, LLC, CV 13-4640 (SJF) (AKT), 2016 U.S. Dist. LEXIS 132520 (E.D.N.Y. Sept. 27, 2016)
("'These documents are described in the log as 'Draft Trademark Assignment.' However, the documents do not contain any redlining or otherwise reflect corrections by counsel. To the extent Perrigo still maintains that these documents are privileged, it must provide a further explanation in writing to the Court within ten (10) days of this Order. This submission may be filed ex parte via fax to Chambers at 631-712-5766.'")

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal NY

Chapter: 55.1009
Case Name: Ferring B.V. v. FERA Pharmaceuticals, LLC, CV 13-4640 (SJF) (AKT), 2016 U.S. Dist. LEXIS 132520 (E.D.N.Y. Sept. 27, 2016)
("'In reviewing this material, the Court would agree that it is 'confidential,' but struggles with the notion that it is privileged. To the extent Perrigo still maintains that these documents are privileged, it must provide a further explanation in writing to the Court within ten (10) days of this Order. This submission may be filed ex parte via fax to Chambers at 631-712-5766.'")

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal NY

Chapter: 55.1009
Case Name: Ferring B.V. v. FERA Pharmaceuticals, LLC, CV 13-4640 (SJF) (AKT), 2016 U.S. Dist. LEXIS 132520 (E.D.N.Y. Sept. 27, 2016)
("'In reviewing this material, the Court would agree that it is 'confidential,' but struggles with the notion that it is privileged. To the extent Perrigo still maintains that these documents are privileged, it must provide a further explanation in writing to the Court within ten (10) days of this Order. This submission may be filed ex parte via fax to Chambers at 631-712-5766.'")

Case Date Jurisdiction State Cite Checked
2016-09-27 Federal NY

Chapter: 55.1009
Case Name: Anderson v. Mountain States Mutual Casualty Co., Civ. A. No. 15-cv-01316-RM-NYW, 2016 U.S. Dist. LEXIS 56733 (D. Colo. Apr. 28, 2016)
June 1, 2016 (PRIVILEGE POINT)

"Courts Deal with Litigants' Tardy or Inadequate Privilege Logs"

Courts frequently deal with litigants' tardy or inadequate privilege logs. Among other things, they must decide the standard of review for a magistrate judge's initial determination; who has jurisdiction to impose sanctions; and the obvious issue of a late or inadequate log's implications. Three decisions decided in the same month highlight these issues.

In United States SEC v. Commonwealth Advisors, Inc., the court extensively analyzed the proper standard for reviewing a magistrate judge's decision that a litigant waived its privilege protection by including "factually incorrect entries" in an amended log (following the magistrate judge's conclusion that the first log was inadequate). Civ. A. No. 3:12-00700-JWD-EWD, 2016 U.S. Dist. LEXIS 46438, at *4 (M.D. La. Apr. 6, 2016). The court applied a "clearly erroneous" standard in upholding the magistrate judge's harsh sanction. Id. at *6. A few weeks later, in NLRB v. D. Bailey Management Co., No. 2:16-cv-02156-CAS (AFMx), 2016 U.S. Dist. LEXIS 57550 (C.D. Cal. Apr. 25, 2016), the court first held that an administrative law judge lacked the power to sanction a litigant's tardy log by finding a waiver — but then itself found that the defendant waived its privilege by failing to log withheld documents for nearly a year. Three days after that, the court in Anderson v. Mountain States Mutual Casualty Co., Civ. A. No. 15-cv-01316-RM-NYW, 2016 U.S. Dist. LEXIS 56733 (D. Colo. Apr. 28, 2016), followed the more generous approach many courts take — finding a litigant's logs inadequate, but giving it a second chance.

The SEC v. Commonwealth Advisors court recognized that "[d]iscovery has become the preeminent battleground in modern litigation, perhaps eclipsing the rare trial." 2016 U.S. Dist. LEXIS 46438, at *2 n.1. That battleground often includes skirmishes over privilege logs' timing and adequacy.

Case Date Jurisdiction State Cite Checked
2016-04-28 Federal CO
Comment:

key case


Chapter: 55.1009
Case Name: Anderson v. Mountain States Mutual Casualty Co., Civ. A. No. 15-cv-01316-RM-NYW, 2016 U.S. Dist. LEXIS 56733 (D. Colo. April 28, 2016)
("Privilege log entries may be deemed insufficient when they are missing 'a descriptive indication as to why the document fits the elements of the privilege -- for example, that it was not shared with a larger group and therefore not confidential." Id. Privilege logs like Defendant's, which merely reflect the bates numbers of the documents and include generic descriptions like 'additional claim notes' simply do not amount to a proper privilege log."; "To the extent that Defendant intends to invoke privilege on any document or redaction, it must propound updated privilege logs no later than May 5, 2016.")

Case Date Jurisdiction State Cite Checked
2016-04-28 Federal CO

Chapter: 55.1009
Case Name: Anderson v. Mountain States Mutual Casualty Co., Civ. A. No. 15-cv-01316-RM-NYW, 2016 U.S. Dist. LEXIS 56733 (D. Colo. April 28, 2016)
("Privilege log entries may be deemed insufficient when they are missing 'a descriptive indication as to why the document fits the elements of the privilege -- for example, that it was not shared with a larger group and therefore not confidential." Id. Privilege logs like Defendant's, which merely reflect the bates numbers of the documents and include generic descriptions like 'additional claim notes' simply do not amount to a proper privilege log."; "To the extent that Defendant intends to invoke privilege on any document or redaction, it must propound updated privilege logs no later than May 5, 2016.")

Case Date Jurisdiction State Cite Checked
2016-04-28 Federal CO

Chapter: 55.1009
Case Name: Johnson v. Ford Motor Co., Case No. 3:13-cv-06529, 2016 U.S. Dist. LEXIS 44267, at *70 (S.D. W. Va. Mar. 28, 2016)
("In the August 28, 2015 opinion and order, the undersigned concluded that Ford's ASO privilege log, as it existed at that time, did not comply with Rule 26(b)(5)(A) because it failed to provide any concrete facts about the nature or subject matter of the withheld documents, which would allow an individual reviewing the log to assess the appropriateness of the privilege claim. Having now reviewed Ford's September 8, 2015 supplementation of the ASO privilege log, the Court finds that the log satisfies Rule 26(b)(5)(A) and the previous opinion and order. The supplemental document descriptions, along with the other information contained in the log, adequately permit Plaintiffs 'to make an intelligent determination about the validity of the assertion of the privilege.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2016-03-28 Federal WV B 8/16

Chapter: 55.1009
Case Name: United States ex rel. Fisher v. Ocwen Loan Servicing, LLC, Case No. 4:12-CV-543, 2016 U.S. Dist. LEXIS 32967, at *10-11 (E.D. Tex. Mar. 15, 2016)
("At this time, the Court will not grant an in camera inspection where, as in the present case, there are potentially hundreds of communications that would require review. To inspect the documents at issue would constitute a great and unnecessary expenditure of judicial resources. However, the Court will enforce the terms of Rule 26. Therefore, the Court orders Relators to revise their privilege log entries to include each element of a claimed privilege or protection so that the Court and Defendants are able to 'test the merits' of the privilege itself. Relators should reveal the identity and position of all senders/creators and addressees/recipients. Additionally, Relators should provide a description of each communication or document withheld with sufficient detail that Defendants can readily assess the claim of privilege." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2016-03-15 Federal TX B 8/16

Chapter: 55.1009
Case Name: United States ex rel. Fisher v. Homeward Residential, Inc., Case No. 4:12-CV-461, 2016 U.S. Dist. LEXIS 32910, at *10-11 (E.D. Tex. Mar. 15, 2016)
("At this time, the Court will not grant an in camera inspection where, as in the present case, there are potentially hundreds of communications that would require review. To inspect the documents at issue would constitute a great and unnecessary expenditure of judicial resources. However, the Court will enforce the terms of Rule 26. Therefore, the Court orders Relators to revise their privilege log entries to include each element of a claimed privilege or protection so that the Court and Defendants are able to 'test the merits' of the privilege itself. Relators should reveal the identity and position of all senders/creators and addressees/recipients. Additionally, Relators should provide a description of each communication or document withheld with sufficient detail that Defendants can readily assess the claim of privilege.")

Case Date Jurisdiction State Cite Checked
2016-03-15 Federal TX B 8/16

Chapter: 55.1009
Case Name: Summerville v. Moran, No. 1:14-cv-02099-WTL-TAB, 2016 U.S. Dist. LEXIS 6384, at *12 13 (S.D. Ind. Jan. 20, 2016)
(finding that an inadequate log did not result in a waiver; "While Leaberry's [defendant's lawyer] failure supports a finding that he waived the privilege, imposing a waiver because his objections and privilege log are inadequate is severe, absent bad faith, willfulness, or fault.")

Case Date Jurisdiction State Cite Checked
2016-01-20 Federal IN B 7/16

Chapter: 55.1009
Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
("The Court agrees with Plaintiff that adding the attorney-client designation along with the common-interest designation is not inappropriate. To the contrary, as the Court indicated, for the common-interest doctrine to apply, the underlying communication must be privileged. Thus, where the Court has specifically informed the Parties that their privilege log is not sufficiently detailed, the Court finds nothing improper about Plaintiffs and CRA identifying the nature of the privileged communication. Any other holding would render the Court's initially ruling inapposite.").

Case Date Jurisdiction State Cite Checked
2015-10-27 Federal MI

Chapter: 55.1009
Case Name: Stormo v. City of Sioux Falls, 4:12-CV-04057-KES, 2015 U.S. Dist. LEXIS 115111 (D.S.D. Aug. 31, 2015)
(holding that an inadequate log did not result in a waiver; "And even if defendants' first privilege log was insufficient, they clearly were not intending to waive the attorney-client privilege. They explicitly invoked the privilege and took reasonable steps to ensure nondisclosure. That is all FED. R. EVID. 502(b) requires."; "twice amplified the detail in their log to provide plaintiff with the information needed to assess the claim of privilege. The court rejects plaintiff's assertion that defendants have inadvertently waived the attorney-client privilege by failing to prepare an adequate privilege log. The court denies plaintiff's motion to compel as to documents BATES stamped 1-22.")

Case Date Jurisdiction State Cite Checked
2015-08-31 Federal SD

Chapter: 55.1009
Case Name: Johnson v. Ford Motor Co., Case No.: 3:13-cv-06529, Case No.: 3:13-cv-14207, Case No.: 3:13-cv-20976, 2015 U.S. Dist. LEXIS 115425 (S.D.W. Va. Aug. 28, 2015)
(ordering a supplemental log, because the defendant used boilerplate log language; "Ford uses the same two document descriptions throughout the entire log, and those descriptions are essentially synonymous. More importantly, the descriptions are nothing more than conclusory statements as to the privileged nature of the documents. Contrary to Ford's position, more factual detail certainly could have been provided to describe the withheld documents without disclosing privileged information, as is evidenced by Ford's responsive brief wherein Ford explains the ASO investigation and ongoing litigation occurring at the time that the documents were created. . . . Certain file names, such as the example listed above or 'DI_UA.xls,' 'Appendix 1 Ford.pdf,' 'Appendix 14 Toyota.pdf,' 'Mar. 1.xls,' and 'Charts.xls,' are incomprehensible and shed no light on Ford's claim that an analysis subject to protection from discovery is contained within those files. . . . Indeed, Mr. Ott, who was questioned about logged documents that were attributed to him, was at a loss as to which of the documents he created were referenced by the privilege log. . . . When the author of a document cannot recognize it from the information provided in a privilege log, the only conclusion is that the log is inadequate and does not fulfill its purpose.")

Case Date Jurisdiction State Cite Checked
2015-08-28 Federal WV

Chapter: 55.1009
Case Name: Johnson v. Ford Motor Co., Case No.: 3:13-cv-06529, Case No.: 3:13-cv-14207, Case No.: 3:13-cv-20976, 2015 U.S. Dist. LEXIS 115425 (S.D.W. Va. Aug. 28, 2015)
(ordering a supplemental log, because the defendant used boilerplate log language; "'When a party provides an inadequate or untimely privilege log, the Court may choose between four remedies: (1) give the party another chance to submit a more detailed log; (2) deem the inadequate log a waiver of the privilege; (3) inspect in camera all of the withheld documents; and (4) inspect in camera a sample of the withheld documents.'"; "While Ford should have realized its document descriptions were inadequate, the undersigned finds that the current circumstances do not justify application of the harshest remedy. Accordingly, the Court FINDS that waiver of privilege related to the withheld ASO investigation documents is not an appropriate sanction at this juncture. Instead, the Court ORDERS Ford to supplement the ASO privilege log with more detailed descriptions of the withheld documents in accordance with Federal Rule of Civil Procedure 26(b)(5)(A), so that Plaintiffs may 'make an intelligent determination about the validity of the assertion of the privilege'. . . . Ford's new supplemental privilege log should provide Plaintiffs with an opportunity to focus their attention on challenging Ford's claim of privilege in relation to specific withheld documents, rather than arguing all of the 132 documents are not privileged for various reasons.")

Case Date Jurisdiction State Cite Checked
2015-08-28 Federal WV

Chapter: 55.1009
Case Name: Spear v. Fenkell, Civ. A. No. 13-02391, 2015 U.S. Dist. LEXIS 79648 (E.D. Pa. June 19, 2015)
("I will require that the Alliance Parties to prepare a revised privilege log, with respect to these entries, containing a more detailed description of the documents. The revised privilege log must spell out the 'corporate governance, compensation, and employment matters' with sufficient detail so that defendant and I can discern whether the subject involved divergent interests between Fenkell and the Alliance Parties.")

Case Date Jurisdiction State Cite Checked
2015-06-19 Federal PA

Chapter: 55.1009
Case Name: Spear v. Fenkell, Civ. A. No. 13-02391, 2015 U.S. Dist. LEXIS 79648 (E.D. Pa. June 19, 2015)
("Mr. Fenkell points out that there are a number of documents identified in the Spear log that are not identified in the Alliance log. . . . He asserts that these discrepancies 'make it clear that neither log provides a comprehensive accounting of responsive documents."; "Accordingly, I direct the Alliance Parties to produce copies of the four subpoenas and to explain why each of the documents referenced in the Spear log were either (1) not in the possession of Alliance, Kenneth Wanko, or their attorneys, or (2) not subject to production based on the language of the other subpoenas. If this exercise uncovers documents that should have been included in Alliance's log and were not, Alliance must also explain why their privilege, such as it is, has not been waived. Whether the explanation is simple or complicated, it needs to be made in a convincing way. That has not happened yet."; "Mr. Fenkell's protestations of bad faith are premature. If and when it is clear that documents subject to a subpoena to Ballard Spahr, Deloitte, or Blank Rome were not identified in the Alliance privilege log, there will be time enough to consider a remedy.")

Case Date Jurisdiction State Cite Checked
2015-06-19 Federal PA

Chapter: 55.1009
Case Name: Anderson v. Branch Banking and Trust Co, Case No. 13-CV-62381-BLOOM/VALLE, 2015 U.S. Dist. LEXIS 63312 (S.D. Fla. May 14, 2015)
(finding that plaintiffs could revise an insufficient privilege log; "In this case, Plaintiffs' revised privilege log does not provide sufficient information for Defendant -- let alone this Court -- to assess their newly-asserted claim that the Rappaport documents are privileged attorney-client communications. . . . For instance, Plaintiffs claim that the document labeled P-64266 is an attorney-client privileged email sent by Rappaport to Frederick Taylor on September 20, 2011 'regarding draft letter to Russel Wright, Center Stage.'. . . A second example is the document labeled P-64375, which Plaintiffs claim is a privileged email sent by Rappaport to Taylor on October 27, 2011 'regarding conversation with Chuck Taylor.'. . . A third example is the document labeled P-64457, which Plaintiffs claim is a privileged email sent by Rappaport to Taylor on February 7, 2011 'regarding letter to Troy Bank.'"; "'[T]he Court is reluctant to pursue such a draconian course, in spite of its superficial appeal.'")

Case Date Jurisdiction State Cite Checked
2015-05-14 Federal FL

Chapter: 55.1009
Case Name: In re Infinity Business Group, Inc., Bankruptcy Case No. 10-06335-jw, Adv. Proc. No. 12-80208-jw, Ch. 7, 2015 Bankr. LEXIS 1560 (D.S.C. April 3, 2015)
(in a privilege log; "[T]he Trustee agreed at the hearing to revise the privilege logs and to confer and resolve any deficiencies in the logs."; "Considering the substantial number of documents subject to review in response to the MK Defendants' broad request for production, the absence of evidence of bad faith or unjustifiable delay on the part of the Trustee in connection with his preparation of the two original privilege logs, and the Trustee's agreement to provide revised privilege logs to satisfy these requirements, the Court is not inclined to find a waiver of the attorney-client privilege due to the alleged insufficiency of the privilege logs at this time.")

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal SC

Chapter: 55.1009
Case Name: Schaeffer v. Gregory Village Partners, L.P., Case No. 13-cv-04358-JST, 2015 U.S. Dist. LEXIS 8797 (N.D. Cal. Jan. 25, 2015)
(explaining that the defendant had changed its log three times; "By February 9, 2015, Gregory Village is also ordered to file a declaration under penalty of perjury, by an attorney of record, that he or she has personally reviewed every entry on the Gregory Village privilege log and affirmatively determined that (a) Gregory Village continues to assert the attorney-client or work product privilege as to each document on the log; and (b) each document description on the log accurately reflects the subject matter of the underlying communication.")

Case Date Jurisdiction State Cite Checked
2015-01-25 Federal CA

Chapter: 55.1009
Case Name: Indianapolis Airport Authority v. Travelers Property Casualty Co. of Am., No. 1:13-cv-01316-JMS-TAB, 2014 U.S. Dist. LEXIS 176607 (S.D. Ind. Dec. 23, 2014)
(analyzing protections in a first party insurance case; "Within fourteen days of this order, Travelers shall supplement the entries in its second amended privilege log with more detailed descriptions of the privileged documents at issue to opposing counsel so that the parties may attempt to seek agreement as to whether the material is privileged. This includes the documents withheld on the basis of the attorney-client privilege where it does not appear that Sacks and Perry were acting as attorneys.")

Case Date Jurisdiction State Cite Checked
2014-12-23 Federal IN

Chapter: 55.1009
Case Name: Burkhead & Scott, Inc. v. City of Hopkinsville, Case No. 5:12-CV-00198-TBR, 2014 U.S. Dist. LEXIS 166374 (W.D. Ky. Dec. 1, 2014)
(holding that City and and a waste authority could enter into a common interest agreement; "[T]he inclusion of Mr. Pickerill, Mr. Bowling, or other unexplained individuals will waive protection unless an updated privilege log substantiates why they should not be considered third parties.")

Case Date Jurisdiction State Cite Checked
2014-12-01 Federal KY

Chapter: 55.1009
Case Name: Ishee v. Federal National Mortgage Association, Civ. A. No. 2:13-cv-234-KS-MTP, 2014 U.S. Dist. LEXIS 71141 (S.D. Miss. May 23, 2014)
("On or before June 3, 2014, Underwood shall file with the clerk of court a supplemental privilege log which contains (for each document withheld as subject to the attorney-client privilege) the name of the document; description of the document, which description must include each requisite element of the privilege asserted; date; author(s); recipient(s); and nature of the privilege.")

Case Date Jurisdiction State Cite Checked
2014-05-23 Federal MS

Chapter: 55.1009
Case Name: Lennar Mare Island, LLC v. Steadfast Ins. Co., No. 2:12-cv-2182 KJM KJN, 2014 U.S. Dist. LEXIS 48509 (E.D. Cal. April 7, 2014)
("LMI shall disclose any and all of the disputed documents where the sole claim of privilege underlying the claim of common interest is the attorney-client privilege. Furthermore, as stated during the hearing, the court will also order LMI to provide Steadfast with an updated privilege log reflecting only the documents it is withholding on the basis of the common interest doctrine where the underlying privilege is a claim of work product immunity."; "'In developing its revised privilege log, LMI is permitted to re-characterize its entries accordingly so long as it can make a good faith claim that the re-characterized entries are entitled to protection as attorney work product.'")

Case Date Jurisdiction State Cite Checked
2014-04-07 Federal CA

Chapter: 55.1009
Case Name: Khasin v. Hershey Co., Case No. 5:12-cv-01862-EJD-PSG, 2014 U.S. Dist. LEXIS 23886, at *19-20 (N.D. Cal. Feb. 21, 2014)
(finding that Hershey did not waive its privilege by producing an inadequate log, but ordering a new log; (finding that Hershey did not waive its privilege by producing an inadequate log, but ordering a new log; "Here, Hershey points to numerous circumstances which may be found to mitigate their delay. First, the scope of discovery was in flux during the seven-month gap, such that it was unclear which documents would actually end up being relevant. Relatedly, Hershey's document production was ongoing, and the log was produced within five weeks of its final production. Finally, although the burden of producing a timely and sufficient log is on the party asserting privilege, the fact that six months elapsed before Khasin inquired about the status of the privilege log is a salient one in this case because discovery was ongoing; Hershey had no reason to believe that Khasin would not be satisfied with a single log produced at the end of its production. Hershey's diligence and responsiveness when Khasin did ask about their log, as well as their willingness to respond to the objections raised, speaks to its good faith efforts to comply with its discovery obligations. In previous cases where privilege has been waived due to untimeliness, the receiving party had generally asked for a log and been ignored or suffered delays after that request." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 55.1009
Case Name: Khasin v. Hershey Co., Case No. 5:12-cv-01862-EJD-PSG, 2014 U.S. Dist. LEXIS 23886, at *8 (N.D. Cal. Feb. 21, 2014)
(finding that Hershey did not waive its privilege by producing an inadequate log, but ordering a new log; "Before concluding that the privilege has been waived, the court is to engage in a holistic, case-by-case analysis of the following four factors: (1) the degree to which the objection or assertion of privilege enables the litigant seeking discovery to evaluate whether each of the withheld documents is privileged; (2) the timeliness of the objection and accompanying information about the withheld documents; (3) the magnitude of the document production; and (4) other particular circumstances of the litigation that make responding to discovery unusually easy or unusually hard.")

Case Date Jurisdiction State Cite Checked
2014-02-21 Federal CA B 7/14

Chapter: 55.1009
Case Name: Osborn v. Griffin, Civ. A. Nos. 11-89- & 13-32-WOB-CJS, 2013 U.S. Dist. LEXIS 132613, at *8 (E.D. Ky. Sept. 17, 2013)
(ordering a litigant to supplement an insufficient log; "[W]hile Thompson Hine's privilege log contains columns for many of these requirements, it does not set forth the information necessary to establish why it believes the listed document is privileged/protected, i.e., that the document was prepared in anticipation of litigation and/or that the subject of a confidential communication relates to the seeking or giving of legal advice." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-09-17 Federal KY B 4/14

Chapter: 55.1009
Case Name: Synovus Bank v. Karp, Civ. No. 1:10-cv-172, 2013 U.S. Dist. LEXIS 105772, at *14-15 (W.D.N.C. July 29, 2013)
("Defendants shall produce a privilege log that complies with the requirements of the Federal Rules within ten (10) days of the entry of this Order. The privilege log must list every responsive document that was withheld from production based on the assertion of the attorney-client privilege or the work product doctrine. The Court will deem Defendants to have waived the applicable privilege to any document not included on the privilege log.")

Case Date Jurisdiction State Cite Checked
2013-07-29 Federal NC B 4/14

Chapter: 55.1009
Case Name: Little Hocking Water Ass'n v. E.I. Du Pont De Nemours & Co., Civ. A. 2:09-cv-1081, 2013 U.S. Dist. LEXIS 22213, at *35 (S.D. Ohio Feb. 19, 2013)
("Little Hocking's failure in this regard is particularly curious considering that it first produced a privilege log nearly a year and a half ago and thereafter twice revised the log. . . . Nevertheless, the Court concludes that it will provide Little Hocking one more opportunity to cure the deficiencies in this regard in its current privilege log.")

Case Date Jurisdiction State Cite Checked
2013-02-19 Federal OH B 2/14

Chapter: 55.1009
Case Name: Tietsworth v. Sears, Roebuck & Co., No. C09-00288 JF HRL, 2013 U.S. Dist. LEXIS 15005, at *3-4 (N.D. Cal. Feb. 4, 2013)
("Whirlpool represented that it could and would amend its logs to identify the specific in-house attorney in question and to state that the purpose of the communication was to provide those attorneys with information for use in defending against plaintiffs' claims here. To the extent it has not already done so, Whirlpool shall amend its logs accordingly. Plaintiffs' motion to compel the production of these documents is otherwise denied.")

Case Date Jurisdiction State Cite Checked
2013-02-04 Federal CA B 2/14

Chapter: 55.1009
Case Name: Judicial Watch, Inc. United States Dep't of Homeland Sec., 926 F. Supp. 2d 121, 145 (D.D.C. 2013)
(pointing to the government's additional descriptions of documents; "[D]escribing efforts made to identify and contact all fifty-two senders and/or recipients of the documents to ensure that the information contained therein had not been transmitted outside of the agency, or outside of agency counsel.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal DC B 3/14

Chapter: 55.1009
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 638-39 (D. Nev. 2013)
("While Plaintiff argues that it has taken months of prodding to get this far, the court does not perceive that Bard has necessarily been unreasonable or dilatory. Bard has undertaken a protracted review of an exceedingly large number of documents and has seemingly attempted to address the deficiencies asserted by Plaintiff by providing supplemental privilege logs."; "[T]he court cannot conclude that Bard's privilege logs operate as a waiver of the attorney-client privilege or work product doctrine.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NV B 3/14

Chapter: 55.1009
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013, at *3-4 (S.D. Ohio Nov. 13, 2012)
("Subsequent to defendants' production of the revised privilege log, the Court ordered defendants to produce a pared down and reorganized privilege log, excluding duplicate entries. . . . Defendants were directed to reorganize the log under two broad categories of documents that defendants assert are protected by: (1) the settlement privilege; and (2) the attorney-client privilege and/or work product doctrine. Within these broad categories, defendants were directed to divide the documents into sub-categories, with the documents for which defendants assert a settlement privilege to be organized into six sub-categories: (1) draft letters; (2) general communications; (3) Notice of Violation (NOV) presentations, including spreadsheets and graphs; (4) 'root cause' write-ups; (5) report/study/technical (not related to an audit); and (6) general. Documents that defendants assert are privileged under the attorney client privilege or work product doctrine were to be organized into the following five categories: (1) draft letters; (2) general communications; (3) compliance-related audits; (4) 'litigation'/2008 URS audits and updates; and (5) documents relating to the instant litigation (Graff litigation documents).")

Case Date Jurisdiction State Cite Checked
2012-11-13 Federal OH B 7/13

Chapter: 55.1009
Case Name: Wilkinson v. Greater Dayton Reg'l Transit Auth., Case No. 3:11cv00247, 2012 U.S. Dist. LEXIS 150579, at *7-8 (S.D. Ohio Oct. 19, 2012)
("Plaintiffs' insistence on obtaining documents based on the asserted insufficiencies in Defendants' first revised privilege log asks the Court to overlook or ignore the further revisions Defendants have made in the second revised privilege log. . . . Defendants' second revised privilege log effectively supercedes their first revised privilege log and moots the parties' dispute over the first revised privilege log.")

Case Date Jurisdiction State Cite Checked
2012-10-19 Federal OH B 12/13

Chapter: 55.1009
Case Name: Werder v. Marriott Int'l, Inc., No. 2:10cv1656, 2012 U.S. Dist. LEXIS 134719, at *6-7 (W.D. Pa. Sept. 20, 2012)
("Although leaving much to be desired, defendant Otis' repeated description of each document as 'communications regarding instant litigation' does not in itself warrant the production of all withheld documents. Defendant Otis also has provided for each communication the specific dates, the protection invoked, and the name of the sender and recipient along with their respective titles and places of business. Furthermore, the supplementing information found in defendant Otis' Prefatory Statement, Answers to Interrogatories, and Answers to Requests for Production of Documents provides additional context to the communications. Collectively, this information adequately satisfies the standard set forth in Rule 26(b)(5).")

Case Date Jurisdiction State Cite Checked
2012-09-20 Federal PA B 10/13

Chapter: 55.1009
Case Name: In re Capital One Bank Credit Card Interest Rate Litig., 286 F.R.D. 676, 681 (N.D. Ga. 2012)
("As in Bogle [Bogle v. McClure, 332 F.3d 1347 (11th Cir. 2003)], Capital One has presented no evidence as to whether the communications at issue were designated 'privileged' or 'confidential' or whether the recipients, where listed, understood the communications to be confidential. Where there are no recipients listed, the court has no way of knowing whether the communications remained confidential and were distributed only to those employees who needed to know its contents and/or were authorized to act on behalf of Capital One with respect to the subject matter of the communications. . . . With regard to these documents failing to list a recipient, Plaintiffs' motion to compel is due to be granted. Where recipients are listed but non-lawyers are included on both sides of the communication, the court again does not possess the information required to ascertain whether the employees included needed to know the contents of the communication and/or were authorized to act on the information for the company. With regard to these documents, that do have recipients listed, Capital One should come forward with additional information so that Plaintiffs, and, if necessary, the court, can better evaluate its claims of attorney-client privilege.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal GA B 5/13

Chapter: 55.1009
Case Name: Confidential Informant 59-05071 v. United States, 108 Fed. Cl. 121, 133 (Fed. Cl. 2012)
(requiring the government to provide more details on the privilege log; "Although defendant has provided the dates of the communications (when known), names of the authors and recipients, and the subjects of e-mail correspondence and titles of documents . . . defendant has not provided any information relevant to whether the withheld communications were for the purpose of obtaining legal advice, and therefore within the scope of the privilege. The court agrees with defendant, however, that in camera review of the documents is not the appropriate resolution of this issue at this juncture. Accordingly, defendant SHALL FILE, at or before 5:00 p.m. Eastern Standard Time (EST) on Wednesday, December 19, 2012, as further provided herein, a notice with the court that provides information sufficient to permit plaintiff to assess whether the documents withheld were within the scope of the attorney-client privilege, specifically, information indicating that the communications contained in the documents were made for the purpose of obtaining legal advice.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal Other B 9/13

Chapter: 55.1009
Case Name: Confidential Informant 59-05071 v. United States, 108 Fed. Cl. 121, 134 (Fed. Cl. 2012)
(requiring the government to provide more details on the privilege log; "[D]efendant SHALL include in its notice to the court to be filed at or before 5:00 p.m. EST on Wednesday, December 19, 2012, as further provided herein, information sufficient to permit plaintiff to assess whether defendant properly withheld the documents for which it claims work-product protection pursuant to RCFC 26(b)(3), specifically, information indicating that the withheld documents were prepared in anticipation of litigation and that they contain the mental impressions, conclusions, opinions or legal theories of one of defendant's attorneys.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal Other B 9/13

Chapter: 55.1009
Case Name: Wilder v. World of Boxing LLC, 16 Civ. 4423 (ALC) (GWG), 2018 U.S. Dist. LEXIS 42059 (S.D.N.Y. March 14, 2018)
(in an opinion by Judge Gorenstein, finding the work product doctrine applicable, after analyzing the context and reading the withheld documents; "The WOB Parties contend that the Wilder Parties waived any work-product protection by identifying the emails only as attorney-client privilege protected and not as work-product protected in their privilege log. . . . While a specific identification is certainly required by Local Civil Rule 26.2(a) (requiring identification of 'the nature of the privilege (including work product) which is being claimed'), 'a district court has inherent authority to determine when to overlook or excuse a departure from its own local rules . . . .' Inasmuch as the Wilder Parties supplied the appropriate factual details about the documents in the privilege log and that no prejudice from the belated claim has inured to the WOB Parties, the Court will exercise its discretion to allow the claim of work-product protection.")

Case Date Jurisdiction State Cite Checked
2008-03-14 Federal NY

Chapter: 55.1010
Case Name: BlackRock Balanced Capital Portfolio (Fi) v. Deutsche Bank National Trust Co., 14-CV-09367 (JMF) (SN), 2018 U.S. Dist. LEXIS 124631 (S.D.N.Y. July 23, 2018)
(analyzing common interest, work product and privilege log issues against defendant Deutsche Bank; focusing among other things on communications between Deutsche Bank as indenture trustee and as loan servicer; "The Court finds that Deutsche Bank has failed to provide an adequate privilege log notwithstanding multiple opportunities to do so. While some log entries are better than others -- for example, where descriptions make clear that documents are draft discovery responses or attorney bills -- Deutsche Bank's obligation is to provide sufficient information so that BlackRock is able to assess the privilege fully. Moreover, as explained in the Court's review of the exemplars, these deficient log entries often result in overly broad privilege assertions. Indeed, Deutsche Bank itself withdrew its privilege claims as to seven of the 20 documents that BlackRock selected as exemplars, and the Court found that an additional ten were improperly withheld."; "A privilege log is not a mere administrative exercise. Its purpose is to ensure that a withholding party can justify a privilege designation. By submitting a deficient log, Deutsche Bank attempted to bypass this requirement, resulting in vastly overinclusive privilege designations. In an attempt to avoid this very problem, the Court ordered Deutsche Bank to provide a sworn affidavit by a party representative explaining why 30 of the Common Interest Exemplars were protected under the common interest doctrine. Instead, Deutsche Bank offered the sworn statement of a Morgan, Lewis & Bockius partner. The Court requested a party representative to force the party to defend its designations in connection with these loan-level litigations. Counsel's views were not requested."; "The failure to provide a party affidavit is demonstrative of Deutsche Bank's broader failings with respect to its privilege log. The Court has given Deutsche Bank multiple opportunities to correct these deficiencies and it has failed to do so. Instead, Deutsche Bank waits until a document is challenged to review whether its privilege designation is correct. And as discussed earlier, when challenged, Deutsche Bank frequently realizes that the privilege was improperly asserted. This stance inappropriately shifts the burden to BlackRock to challenge a privilege assertion when Deutsche Bank should have established why a document was protected in the first place. A privilege log is not an iterative process and the Court will not offer Deutsche Bank another opportunity to follow the rules established in this Circuit."; "Accordingly, Deutsche Bank has waived its privilege with respect to all documents listed on its privilege log (except as otherwise ruled in this Order) unless it can make a particularized showing as to individual documents that it believes are (1) adequately described on its log and, (2) in fact, privileged. Only documents listed on the privilege log with complete information -- that is, the name of the author of the document, the name of any attorney, a clear description of the document, etc. -- could qualify for this safety valve. Absent an application to the Court within 30 days on a document-by-document basis, all documents on the privilege log must be produced. The parties are ordered to file their letters on the docket.")

Case Date Jurisdiction State Cite Checked
2018-07-23 Federal NY

Chapter: 55.1010
Case Name: In re ExamWorks Grp., Inc. Stockholder Appraisal Litig., Consolidated C.A. No. 12688-VCL, 2018 Del. Ch. LEXIS 56 (Del. Ch. Ct. Feb. 21, 2018)
(holding that the litigant waived its attorney-client privilege by not properly preparing a log; nevertheless allowing the litigant to withhold documents where a lawyer was the author or "a principle" recipient; "The privilege log enables the party that requested documents to evaluate the producing party's claim of privilege. 'The log is supposed to provide sufficient information to enable the adversary to assess the privilege claim and decide whether to mount a challenge . . . . Just as you can't hit what you can't see, you can't challenge what the other side hasn't described.' Producing a privilege log after the discovery cutoff prevents the opposing party from evaluating the log, making timely challenges, and using the resulting documents in discovery. Producing a post-cutoff log has the same effect as not producing a log, which is the same thing as not providing any support for a claim of privilege. 'An improperly asserted claim of privilege is no claim of privilege at all.'"; "The Entwistle Petitioners and the G&E Petitioners failed to produce their logs until months after the discovery cutoff. On the facts of this case, waiver is an appropriate consequence. The Entwistle Petitioners and G&E Petitioners need not produce entries where (i) counsel was the author or a principal recipient (not simply a copy recipient) and (ii) the item post-dates the filing of the appraisal proceeding on August 25, 2016."; "The Company has leave to conduct supplemental depositions of the petitioners' representatives to explore any materials produced after their depositions or as a result of this decision. Each of the petitioners shall bear the cost of the supplemental depositions of its own representatives. As with any supplemental depositions resulting from the Entwistle Petitioners' late production, the Company should not abuse this opportunity. It should only take the depositions that are necessary.")

Case Date Jurisdiction State Cite Checked
2018-02-21 State DE

Chapter: 55.1010
Case Name: Stephens v. N.C. Dep't of Pub. Safety, 5:17-CV-30-BO, 2017 U.S. Dist. LEXIS 203082 (E.D.N.C. Dec. 11, 2017)
(finding that a litigant had been tardy in preparing a log, but not finding a waiver; "Plaintiff waived any objections to the production requests by her failure to respond timely to them. . . . Nevertheless, the court will permit her to assert proper claims of privilege (including, e.g., attorney-client privilege, work-product protection) in her response to the production requests. This is the only objection plaintiff may assert. To properly claim a privilege, plaintiff must, in addition to expressly asserting it in response to the particular production request involved, serve with her response a privilege log in conformance with Rule 26(b)(5)(A). Any claim of privilege shall meet the requirements for the privilege asserted. Failure to timely serve a duly signed privilege log meeting the requirements of Rule 26(b)(5)(A) shall be deemed a waiver of the privilege otherwise claimed.")

Case Date Jurisdiction State Cite Checked
2017-12-11 Federal NC

Chapter: 55.1010
Case Name: Obeid v. La Mack, 14 Civ. 6498 (LTS) (HBP), 2016 U.S. Dist. LEXIS 170826 (S.D.N.Y. Dec. 9, 2016)
(holding that the plaintiff could not claim work product protection for documents that he had not designated as work product-protected in his log; "I conclude plaintiff has waived any privilege that was not asserted in the privilege log. Plaintiff has taken inconsistent positions as to which privilege protects which document, and he did not assert the attorney-client privilege in his correspondence to me when the parties' disagreement concerning the Disputed Documents first arose. . . . Moreover, plaintiff never amended his privilege log to assert both the attorney-client privilege and the work-product doctrine for all of the Disputed Documents. Therefore, I shall evaluate the Disputed Documents on the basis of the protections actually asserted in the privilege log.")

Case Date Jurisdiction State Cite Checked
2016-12-09 Federal NY

Chapter: 55.1010
Case Name: TCV VI, L.P. v. TradingScreen Inc., C.A. No. 10164-VCN, 2015 Del. Ch. LEXIS 245 (Del. Ch. Sept. 25, 2015)
(analyzing the scope of a litigant's admitted waiver through reliance on advice of counsel; "Because 'an improperly asserted claim of privilege is no claim of privilege at all,' a party that fails to adequately describe withheld documents might waive privilege for those documents. Court-ordered waiver, however, has been characterized as a 'harsh result' typically only justified 'in cases of the most egregious conduct by the party claiming the privilege.' Where the log's inadequacy does not cause prejudice or reflect bad faith, the court has discretion to fashion 'more remedial sanctions.'"; "Ordinarily, a party asserting privilege must produce both a privilege log and a redaction log absent mutual agreement that a less burdensome arrangement will suffice. The Plaintiffs in this matter present a fair alternative to preparing a redaction log: ordering senior Delaware counsel for the Defendants to review each redaction and certify that no redaction runs afoul of the scope of waiver set forth in this letter opinion."; "This meet-in-the-middle solution makes sense under these circumstances. There is no evidence of bad faith or deliberate obfuscation. . . . The task of logging each redaction may prove a laborious addition to an already-vast discovery effort, a fact of some significance given this Court's efficiency ideals and the presence of a less burdensome alternative proposed by the aggrieved party.").

Case Date Jurisdiction State Cite Checked
2015-09-25 Federal DE

Chapter: 55.1010
Case Name: Schaeffer v. Gregory Village Partners, L.P., Case No. 13-cv-04358-JST, 2015 U.S. Dist. LEXIS 8797 (N.D. Cal. Jan. 25, 2015)
(explaining that the defendant had changed its log three times; "By February 9, 2015, Gregory Village is also ordered to file a declaration under penalty of perjury, by an attorney of record, that he or she has personally reviewed every entry on the Gregory Village privilege log and affirmatively determined that (a) Gregory Village continues to assert the attorney-client or work product privilege as to each document on the log; and (b) each document description on the log accurately reflects the subject matter of the underlying communication.")

Case Date Jurisdiction State Cite Checked
2015-01-25 Federal CA

Chapter: 55.1010
Case Name: Neelon v. Krueger; Civ. A. No. 12-11198-IT, 2014 U.S. Dist. LEXIS 175792 (D. Mass. Dec. 19, 2014)
("In this situation, with the exceptions noted as to communications between his counsel in the instant litigation about the instant litigation, plaintiff has, by failing to produce an adequate privilege log, waived any privileges or protections which were asserted. . . . The Court assumes it has discretion to give the plaintiff an opportunity to furnish an adequate privilege log, but in the present circumstances, that option is not appropriate. . . . Due to the plaintiff's delay in producing the log, there simply is not time to have a new privilege log prepared and then have the subsequent litigation over the adequacy of that log and the validity of the assertions take place.")

Case Date Jurisdiction State Cite Checked
2014-12-19 Federal MA

Chapter: 55.1010
Case Name: United States v. Balsiger, Case No. 07-CR-57, 2013 U.S. Dist. LEXIS 96387, at *47-48 (E.D. Wis. July 10, 2013)
("The defendants can not [sic] change their privilege claims on appeal after Magistrate Judge Gorence's ruling -- especially without prominent mention of it. Because of this suspicious change, the court cross-referenced entries on the appellate logs against the prior logs. But shortly after starting this cross-referencing process, the court determined that it was just too time consuming. Instead, the court simply used the logs submitted to Magistrate Judge Gorence in August 2010 . . . and the hard copies of the documents or the links on the disk submitted in December 2011 . . . . If this court sees such a change of arguments or claims on appeal again in this case, the conduct will be sanctioned.")

Case Date Jurisdiction State Cite Checked
2013-07-10 Federal WI B 4/14

Chapter: 55.1010
Case Name: Smith v. James C. Hormel Sch. of the Va. Inst. of Autism, Civ. A. No. 3:08cv00030, 2010 U.S. Dist. LEXIS 95668, at *7-8, *12, *13, *18 (W.D. Va. Sept. 14, 2010)
(finding that litigants' failure to log withheld documents did not result in a waiver, but did justify monetary sanctions; "Federal Rule of Civil Procedure 26(b)(5) requires a party withholding otherwise discoverable information by claiming the attorney-client privilege to (1) expressly make the claim, and (2) described the nature of the communications not being disclosed in a manner that will enable other parties to assess the claim of privilege. Fed. R. Civ. P. 26(b)(5)(A)(ii). 'Filing a privilege log has become the "universally acceptable mean[s] of asserting privileges in discovery in the federal courts."'"; finding that "waiver is not automatic" for failure to log; "Given the sanctity of the attorney client privilege and the seriousness of privilege waiver, courts generally find waiver only in cases involving unjustified delay, inexcusable conduct and bad faith."; noting that the litigant who failed to log withheld documents "[i]s a lawyer with extensive litigation experience, but at the time in question, he and his wife were proceeding pro se in this matter. Once the Smiths retained counsel, they promptly identified the email communications on a privilege log in response to VIA's document requests on the state law claims."; imposing monetary sanctions)

Case Date Jurisdiction State Cite Checked
2010-09-14 Federal VA

Chapter: 55.1010
Case Name: Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 274 (E.D. Va. 2004)
("[T]he Court declines to impose the exceedingly harsh sanction of deeming Rambus' asserted privileges waived. See 6 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 26.90 at 236-37 (3d ed. 2003)")

Case Date Jurisdiction State Cite Checked
2004-01-01 Federal VA

Chapter: 55.1011
Case Name: Progressive Southeastern Insurance Co. v. Arbormax Tree Service, LLC, 5:16-CV-662-BR, 2018 U.S. Dist. LEXIS 159222 (E.D.N.C. Sept. 17, 2018)
(analyzing log requirements in a third party insurance context; "The court concludes that by failing to produce a privilege log for the documents in the coverage file for the ATS policy that it is withholding plaintiff has waived its claims of workproduct protection and attorney-client privilege as to these documents.")

Case Date Jurisdiction State Cite Checked
2018-09-17 Federal NC

Chapter: 55.1011
Case Name: Brown v. Nationwide Affinity Ins. Co. of America, 4:17-CV-04176-LLP, 2018 U.S. Dist. LEXIS 109115 (D.S.D. June 29, 2018)
("Nationwide's failure to assert the work product doctrine in its Vaughn index would be enough, standing by itself, to defeat the application of the doctrine. Discovery objections are waived if they are not first asserted in the responses to the opposing party's discovery requests.")

Case Date Jurisdiction State Cite Checked
2018-06-29 Federal SD

Chapter: 55.1011
Case Name: Local Access, LLC v. Peerless Network, Inc., Case No. 6:17-cv-236-Orl-40TBS, 2018 U.S. Dist. LEXIS 97955 (M.D. Fla. June 12, 2018)
("To the extent Peerless is contending that any particular document otherwise responsive to a request is being withheld based on privilege, its failure to produce the required log waives the objection as to that document. But, that does not appear to be the basis of Peerless's work product objection. Rather, Peerless objects to the compilation of documents that are not privileged.")

Case Date Jurisdiction State Cite Checked
2018-06-12 Federal FL

Chapter: 55.1011
Case Name: In re ExamWorks Grp., Inc. Stockholder Appraisal Litig., Consolidated C.A. No. 12688-VCL, 2018 Del. Ch. LEXIS 56 (Del. Ch. Ct. Feb. 21, 2018)
(holding that the litigant waived its attorney-client privilege by not properly preparing a log; nevertheless allowing the litigant to withhold documents where a lawyer was the author or "a principle" recipient; "The privilege log enables the party that requested documents to evaluate the producing party's claim of privilege. 'The log is supposed to provide sufficient information to enable the adversary to assess the privilege claim and decide whether to mount a challenge . . . . Just as you can't hit what you can't see, you can't challenge what the other side hasn't described.' Producing a privilege log after the discovery cutoff prevents the opposing party from evaluating the log, making timely challenges, and using the resulting documents in discovery. Producing a post-cutoff log has the same effect as not producing a log, which is the same thing as not providing any support for a claim of privilege. 'An improperly asserted claim of privilege is no claim of privilege at all.'"; "The Entwistle Petitioners and the G&E Petitioners failed to produce their logs until months after the discovery cutoff. On the facts of this case, waiver is an appropriate consequence. The Entwistle Petitioners and G&E Petitioners need not produce entries where (i) counsel was the author or a principal recipient (not simply a copy recipient) and (ii) the item post-dates the filing of the appraisal proceeding on August 25, 2016."; "The Company has leave to conduct supplemental depositions of the petitioners' representatives to explore any materials produced after their depositions or as a result of this decision. Each of the petitioners shall bear the cost of the supplemental depositions of its own representatives. As with any supplemental depositions resulting from the Entwistle Petitioners' late production, the Company should not abuse this opportunity. It should only take the depositions that are necessary.")

Case Date Jurisdiction State Cite Checked
2018-02-21 State DE

Chapter: 55.1011
Case Name: In re ExamWorks Grp., Inc. Stockholder Appraisal Litig., Consolidated C.A. No. 12688-VCL, 2018 Del. Ch. LEXIS 56 (Del. Ch. Ct. Feb. 21, 2018)
(holding that the litigant waived its attorney-client privilege by not properly preparing a log; nevertheless allowing the litigant to withhold documents where a lawyer was the author or "a principle" recipient; "The privilege log enables the party that requested documents to evaluate the producing party's claim of privilege. 'The log is supposed to provide sufficient information to enable the adversary to assess the privilege claim and decide whether to mount a challenge . . . . Just as you can't hit what you can't see, you can't challenge what the other side hasn't described.' Producing a privilege log after the discovery cutoff prevents the opposing party from evaluating the log, making timely challenges, and using the resulting documents in discovery. Producing a post-cutoff log has the same effect as not producing a log, which is the same thing as not providing any support for a claim of privilege. 'An improperly asserted claim of privilege is no claim of privilege at all.'"; "The Entwistle Petitioners and the G&E Petitioners failed to produce their logs until months after the discovery cutoff. On the facts of this case, waiver is an appropriate consequence. The Entwistle Petitioners and G&E Petitioners need not produce entries where (i) counsel was the author or a principal recipient (not simply a copy recipient) and (ii) the item post-dates the filing of the appraisal proceeding on August 25, 2016."; "The Company has leave to conduct supplemental depositions of the petitioners' representatives to explore any materials produced after their depositions or as a result of this decision. Each of the petitioners shall bear the cost of the supplemental depositions of its own representatives. As with any supplemental depositions resulting from the Entwistle Petitioners' late production, the Company should not abuse this opportunity. It should only take the depositions that are necessary.")

Case Date Jurisdiction State Cite Checked
2018-02-21 State DE

Chapter: 55.1011
Case Name: Bartech Systems Int'l v. Mobile Simple Solutions, Inc., Case No. 2:15-cv-02422-MMD-NJK, 2018 U.S. Dist. LEXIS 22296 (D. Nev. Feb. 12, 2018)
("Defendant did not raise the attorney-client privilege or the attorney work-product doctrine in its initial response and, therefore, has waived these objections.")

Case Date Jurisdiction State Cite Checked
2018-02-12 Federal NV

Chapter: 55.1011
Case Name: Sidibe v. Health, Case No. 12-cv-04854-LB, 2018 U.S. Dist. LEXIS 20350 (N.D. Cal. Feb. 7, 2018)
(holding that a company's CFO's presentation did not deserve privilege protection under the primary purpose standard; "The court finds that Sutter has not met its burden of establishing that the redacted portion of the document bates-stamped DEF001993743-51, which Sutter provided to the court unredacted as PrivID 00704, is privileged. The redacted portion of the document appears to be a presentation delivered by Sutter's Chief Financial Officer and a regional CFO to general non-lawyer 'Strategy Session Participants' on business matters, as part of a larger day-long strategy meeting on business matters, and does not appear to be related to the rendition of legal (as opposed to business) advice. Nor does Sutter's privilege log entry -- which contains only a vague allusion that the redacted portion of this document somehow 'reflect[s] legal advice' from the 'Legal Department' -- meet its burden of establishing that the redacted portion of this document is privileged.")

Case Date Jurisdiction State Cite Checked
2018-02-07 Federal CA

Chapter: 55.1011
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SN), 2018 U.S. Dist. 3073 (S.D.N.Y. Jan. 5, 2018)
("The memorandum appears to have been prepared in anticipation of litigation and may well be covered by work product immunity. But the Fifth Log states that the document was prepared by Melissa Ewing, which is false. By failing to provide accurate information required by Local Civil Rule 26.2, Defendants waived any claim that the document was covered by work product immunity. Document 51 must be produced.")

Case Date Jurisdiction State Cite Checked
2018-01-05 Federal NY

Chapter: 55.1011
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SN), 2018 U.S. Dist. 3073 (S.D.N.Y. Jan. 5, 2018)
("[I]n order to ameliorate the privilege log issue, within three weeks of the date of this Opinion and Order, Defendants are ORDERED to produce a single final version of the privilege log (the 'Final Log') that lists all of the documents for which they maintain privilege claims. In preparing this Final Log, Defendants may not add any documents that were not included in the Second and Fifth Logs and may not change the descriptions used in those two privilege logs. If a document is listed in both the Second and Fifth Logs, the description in the Fifth Log shall be used in the Final Log and shall be controlling. Any documents not listed in the Final Log must be produced within three weeks of this Opinion and Order.")

Case Date Jurisdiction State Cite Checked
2018-01-05 Federal NY

Chapter: 55.1011
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SN), 2018 U.S. Dist. 3073 (S.D.N.Y. Jan. 5, 2018)
("[I]n order to ameliorate the privilege log issue, within three weeks of the date of this Opinion and Order, Defendants are ORDERED to produce a single final version of the privilege log (the 'Final Log') that lists all of the documents for which they maintain privilege claims. In preparing this Final Log, Defendants may not add any documents that were not included in the Second and Fifth Logs and may not change the descriptions used in those two privilege logs. If a document is listed in both the Second and Fifth Logs, the description in the Fifth Log shall be used in the Final Log and shall be controlling. Any documents not listed in the Final Log must be produced within three weeks of this Opinion and Order.")

Case Date Jurisdiction State Cite Checked
2018-01-05 Federal NY

Chapter: 55.1011
Case Name: EEOC v. BDO USA, L.L.P., No. 16-20314, 2017 U.S. App. LEXIS 23067 (5th Cir. Nov. 16, 2017)
(analyzing an investigation into BDO's former chief human resource officer's Title VII lawsuit; "Continual failure to adhere to Rule 26's prescription may result in waiver of the privilege where a court finds that the failure results from unjustified delay, inexcusable conduct, or bad faith.")

Case Date Jurisdiction State Cite Checked
2017-11-16 Federal

Chapter: 55.1011
Case Name: Waymo LLC v. Uber Technologies, Inc., Case No. 17-cv-00939-WHA (JSC), 2017 U.S. Dist. LEXIS 178643 (N.D. Cal. Oct. 27, 2017)
(finding that Uber had waived its protections by not supplying a log as required by a court order)

Case Date Jurisdiction State Cite Checked
2017-10-27 Federal CA

Chapter: 55.1011
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SNC), 2017 U.S. Dist. LEXIS 176102 (S.D.N.Y. Oct. 24, 2017)
(holding that a litigant waived its privilege by creating an impermissibly vague log; "The Fifth Log frequently falls short of the requirements of Rule 26 and Local Civil Rule 26.2. The descriptions in the Fifth Log are often vague and incomplete, and in many cases, the information is blatantly incorrect. In their letter accompanying the exemplars submitted for in camera review, Defendants supply the Court with numerous corrections and details not included in the Fifth Log. Defendants had never previously provided that information to Plaintiffs. Although this new information is illuminating, Defendants should have included the correct information and additional details in their Fifth Log (or preferably in the original version of the log). Plaintiffs needed that information to assess the claims of privilege."; "In assessing whether the withheld documents are privileged, the Court will rely on the Fifth Log. The Court will not consider the corrections and additional details included in Defendants' letter to the Court. Defendants waived any privilege that may have applied if the information in the letter had been properly set forth in the Fifth Log.")

Case Date Jurisdiction State Cite Checked
2017-10-24 Federal NY
Comment:

key case


Chapter: 55.1011
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SNC), 2017 U.S. Dist. LEXIS 176102 (S.D.N.Y. Oct. 24, 2017)
("The Fifth Log claims that Documents 64, 80, 186, and 498 are covered by work product immunity alone; it does not state that the attorney-client privilege applies. In their letter to the Court, Defendants have attempted to argue that the documents are covered by both work product immunity and attorney-client privilege. As discussed above, however, Defendants have waived any claims that the documents are covered by attorney-client privilege, and the Court will not consider the new privilege claims.")

Case Date Jurisdiction State Cite Checked
2017-10-24 Federal NY

Chapter: 55.1011
Case Name: Au New Haven, LLC v. YKK Corp., 15-CV-03411 (GHW) (SNC), 2017 U.S. Dist. LEXIS 176102 (S.D.N.Y. Oct. 24, 2017)
("Despite these valid privilege claims, however, the Fifth Log's description of Document 713 is incredibly vague. It simply states that this document was a 'communication reflecting . . . counsel's thoughts and strategy regarding patent strategy." In addition, the description does not identify Moeller as the source of the legal advice, nor does it mention Yumoto, the only member of YKK's legal department involved in the communication. Without any reference to a specific member of the legal department, it was impossible for Plaintiffs to assess whether Defendants' claim of privilege was valid. Defendants waived their privilege claim by failing to comply with Rule 26 and Local Civil Rule 26.2.")

Case Date Jurisdiction State Cite Checked
2017-10-24 Federal NY

Chapter: 55.1011
Case Name: Fidelity and Deposit Co. of Md. v. Travelers Casualty and Surety Co. of Am., Case No. 2:13-cv-00380-JAD-GWF, 2017 U.S. Dist. LEXIS 84070 (D. Nev. May 31, 2017)
(finding that defendant's failure to properly log resulted in a waiver; "It is beyond dispute that Travelers' privilege objections were mere boilerplate. In response to several requests, Travelers did not actually expressly claim the attorney-client privilege or work product doctrine, but stated only that it had made available or would produce 'all non privileged documents responsive to this request.' Where it did object, it do so 'on the ground that this request seeks materials that may be privileged and confidential under either the work product and/or attorney client privileges.' Needless to say, these statements did not provide any information about the withheld documents that would enable Fidelity or the Court to assess the validity of the claims of privilege. The first Burlington [Burlington Northern & Santa Fe Ry. v. United States Dist. Court, 408 F.3d 1142, 1149 (9th Cir. 2005)] factor therefore supports a finding of waiver."; "As evidenced by the parties' September 27, 2016 stipulation, the magnitude of the document production in this case has been substantial. This factor would weigh in favor of a finding of non-waiver if the periods of delay had not been so lengthy, and if there was some evidence that Travelers had taken steps prior to March 16, 2017 to prepare and serve privilege logs, or had sought an agreement with Fidelity respecting the time for production of logs. Other particular circumstances in this case do not, on balance, weigh against a finding of waiver. Travelers and its counsel are experienced participants in this type of litigation and should be familiar with the requirements for organizing and producing documents in construction contract-surety disputes, and in asserting proper privilege objections and timely serving sufficient privilege logs.")

Case Date Jurisdiction State Cite Checked
2017-05-31 Federal NV

Chapter: 55.1011
Case Name: Meade v. General Motors, LLC, Civ. A. No. 1:16-cv-00991-AT, 2017 U.S. Dist. LEXIS 61455 (N.D. Ga. April 21, 2017)
(finding that defendant's deficient log waived privilege protection; "After being twice ordered by the Court to provide a proper privilege log, this is the only information Defendant has offered to satisfy its burden under Fed. R. Civ. P. 26(b)(5)(A) of demonstrating that the information is properly subject to a claim of privilege. Defendant utterly failed to heed this Court's express directives in the March 22, 2017 discovery conference or the legal requirements applicable to privilege logs.")

Case Date Jurisdiction State Cite Checked
2017-04-21 Federal GA

Chapter: 55.1011
Case Name: Meade v. General Motors, LLC, Civ. A. No. 1:16-cv-00991-AT, 2017 U.S. Dist. LEXIS 61455 (N.D. Ga. April 21, 2017)
(finding that defendant's deficient log waived privilege protection; "Defendant's conduct in this case in asserting an overly broad claim of attorney-client privilege and failing to produce a proper privilege log after twice being ordered by the Court to do so was improper, obstructive, and undertaken in bad faith in order to avoid its discovery obligations. Accordingly, the Court finds that Defendant has waived its attorney-client privilege as to all documents other than those specifically identified above at pages 14-15 as being properly subject to the privilege, and ORDERS Defendant to IMMEDIATELY (NOT LATER THAN APRIL 24, 2017) provide Plaintiff immediate electronic access to the documents before the scheduled deposition on April 25, 2017.")

Case Date Jurisdiction State Cite Checked
2017-04-21 Federal GA

Chapter: 55.1011
Case Name: Young v. City of Chicago, Case No. 13 C 5651, 2017 U.S. Dist. LEXIS 394 (N.D. Ill. Jan. 3, 2017)
(finding that a litigant's failure to log documents caused a waiver; "The City's cavalier attitude toward the discovery process and nonopposition to enforcing the subpoena, expressed by Hurd in open court, warrant findings of willfulness, fault, and bad faith, and the City has therefore waived its privilege claims.")

Case Date Jurisdiction State Cite Checked
2017-01-03 Federal IL

Chapter: 55.1011
Case Name: Nimkoff Rosenfeld & Schechter, LLP v. RKO Properties, Ltd., 07 Civ. 7983 (DAB) (HBP), 2016 U.S. Dist. LEXIS 70051 (S.D.N.Y. May 24, 2016)
("[T]he Magistrate was well within his discretion in finding that failure to provide an adequate privilege log is grounds for rejecting a claim of privilege, such as work-product.")

Case Date Jurisdiction State Cite Checked
2016-05-24 Federal NY

Chapter: 55.1011
Case Name: The Manitowoc Co., Inc. v. Kachmer, Case No. 14-cv-9271, 2016 U.S. Dist. LEXIS 61503 (N.D. Ill. May 10, 2016)
("'Even assuming the audio recordings constitute work product, Plaintiff has waived the privilege by failing to list the documents in its privilege log. . . . not only did Plaintiff fail to list the Employee interview recordings in its privilege log, it also failed to acknowledge the existence of the recordings until faced with Defendant Kachmer's formal and informal requests to produce. . . . This goes beyond a good-faith oversight. By knowingly refusing to declare potentially privileged information as required by Rule 26(b)(5)(A), Plaintiff has waived its ability to assert work-product privilege over the recordings.'")

Case Date Jurisdiction State Cite Checked
2016-05-10 Federal IL

Chapter: 55.1011
Case Name: National Labor Relations Board v. D. Bailey Mgmt. Co., 2:16-cv-02156-CAS (AFMx), 2016 U.S. Dist. LEXIS 57550 (C.D. Cal. April 25, 2016)
("Applying this holistic analysis, the Court concludes that respondent has waived the attorney-client privilege by failing to timely produce a sufficient privilege log. The Subpoena was issued in February of 2015 and ALJ Esposito denied respondent's petition to revoke the Subpoena in March of 2015. As of that time, respondent had an obligation to either produce responsive documents or make a valid assertion of privilege supported by a privilege log. Nonetheless, respondent did not produce any privilege log until February 22, 2016 -- nearly a year after ALJ Esposito denied respondent's petition to revoke the Subpoena."; "[A]t the hearing, the Court asked counsel for respondent why she had not requested an extension from the Court in which to submit a privilege log. Counsel for respondent had no answer for this question. Had respondent apprised the Court that it was having difficulty complying with the enforcement order, the Court and the parties could have found an amenable solution, including by granting respondent additional time to produce a privilege log. Respondent's decision instead not to produce a privilege log at all deprived the parties any such opportunity and, simply put, was inexcusable.")

Case Date Jurisdiction State Cite Checked
2016-04-25 Federal CA

Chapter: 55.1011
Case Name: National Labor Relations Board v. D. Bailey Mgmt. Co., 2:16-cv-02156-CAS (AFMx), 2016 U.S. Dist. LEXIS 57550 (C.D. Cal. April 25, 2016)
("Applying this holistic analysis, the Court concludes that respondent has waived the attorney-client privilege by failing to timely produce a sufficient privilege log. The Subpoena was issued in February of 2015 and ALJ Esposito denied respondent's petition to revoke the Subpoena in March of 2015. As of that time, respondent had an obligation to either produce responsive documents or make a valid assertion of privilege supported by a privilege log. Nonetheless, respondent did not produce any privilege log until February 22, 2016 -- nearly a year after ALJ Esposito denied respondent's petition to revoke the Subpoena."; "[A]t the hearing, the Court asked counsel for respondent why she had not requested an extension from the Court in which to submit a privilege log. Counsel for respondent had no answer for this question. Had respondent apprised the Court that it was having difficulty complying with the enforcement order, the Court and the parties could have found an amenable solution, including by granting respondent additional time to produce a privilege log. Respondent's decision instead not to produce a privilege log at all deprived the parties any such opportunity and, simply put, was inexcusable.")

Case Date Jurisdiction State Cite Checked
2016-04-25 Federal CA

Chapter: 55.1011
Case Name: NLRB v. D. Bailey Management Co., No. 2:16-cv-02156-CAS (AFMx), 2016 U.S. Dist. LEXIS 57550 (C.D. Cal. Apr. 25, 2016)
June 1, 2016 (PRIVILEGE POINT)

"Courts Deal with Litigants' Tardy or Inadequate Privilege Logs"

Courts frequently deal with litigants' tardy or inadequate privilege logs. Among other things, they must decide the standard of review for a magistrate judge's initial determination; who has jurisdiction to impose sanctions; and the obvious issue of a late or inadequate log's implications. Three decisions decided in the same month highlight these issues.

In United States SEC v. Commonwealth Advisors, Inc., the court extensively analyzed the proper standard for reviewing a magistrate judge's decision that a litigant waived its privilege protection by including "factually incorrect entries" in an amended log (following the magistrate judge's conclusion that the first log was inadequate). Civ. A. No. 3:12-00700-JWD-EWD, 2016 U.S. Dist. LEXIS 46438, at *4 (M.D. La. Apr. 6, 2016). The court applied a "clearly erroneous" standard in upholding the magistrate judge's harsh sanction. Id. At *6. A few weeks later, in NLRB v. D. Bailey Management Co., No. 2:16-cv-02156-CAS (AFMx), 2016 U.S. Dist. LEXIS 57550 (C.D. Cal. Apr. 25, 2016), the court first held that an administrative law judge lacked the power to sanction a litigant's tardy log by finding a waiver — but then itself found that the defendant waived its privilege by failing to log withheld documents for nearly a year. Three days after that, the court in Anderson v. Mountain States Mutual Casualty Co., Civ. A. No. 15-cv-01316-RM-NYW, 2016 U.S. Dist. LEXIS 56733 (D. Colo. Apr. 28, 2016), followed the more generous approach many courts take — finding a litigant's logs inadequate, but giving it a second chance.

The SEC v. Commonwealth Advisors court recognized that "[d]iscovery has become the preeminent battleground in modern litigation, perhaps eclipsing the rare trial." 2016 U.S. Dist. LEXIS 46438, at *2 n.1. That battleground often includes skirmishes over privilege logs' timing and adequacy.

Case Date Jurisdiction State Cite Checked
2016-04-25 Federal CA
Comment:

key case


Chapter: 55.1011
Case Name: SEC v. Commonwealth Advisors, Inc., Civ. A. No. 3:12-00700-JWD-EWD, 2016 U.S. Dist. LEXIS 46438, at *4 (M.D. La. Apr. 6, 2016)
June 1, 2016 (PRIVILEGE POINT)

"Courts Deal with Litigants' Tardy or Inadequate Privilege Logs"

Courts frequently deal with litigants' tardy or inadequate privilege logs. Among other things, they must decide the standard of review for a magistrate judge's initial determination; who has jurisdiction to impose sanctions; and the obvious issue of a late or inadequate log's implications. Three decisions decided in the same month highlight these issues.

In United States SEC v. Commonwealth Advisors, Inc., the court extensively analyzed the proper standard for reviewing a magistrate judge's decision that a litigant waived its privilege protection by including "factually incorrect entries" in an amended log (following the magistrate judge's conclusion that the first log was inadequate). Civ. A. No. 3:12-00700-JWD-EWD, 2016 U.S. Dist. LEXIS 46438, at *4 (M.D. La. Apr. 6, 2016). The court applied a "clearly erroneous" standard in upholding the magistrate judge's harsh sanction. Id. At *6. A few weeks later, in NLRB v. D. Bailey Management Co., No. 2:16-cv-02156-CAS (AFMx), 2016 U.S. Dist. LEXIS 57550 (C.D. Cal. Apr. 25, 2016), the court first held that an administrative law judge lacked the power to sanction a litigant's tardy log by finding a waiver — but then itself found that the defendant waived its privilege by failing to log withheld documents for nearly a year. Three days after that, the court in Anderson v. Mountain States Mutual Casualty Co., Civ. A. No. 15-cv-01316-RM-NYW, 2016 U.S. Dist. LEXIS 56733 (D. Colo. Apr. 28, 2016), followed the more generous approach many courts take — finding a litigant's logs inadequate, but giving it a second chance.

The SEC v. Commonwealth Advisors court recognized that "[d]iscovery has become the preeminent battleground in modern litigation, perhaps eclipsing the rare trial." 2016 U.S. Dist. LEXIS 46438, at *2 n.1. That battleground often includes skirmishes over privilege logs' timing and adequacy.

Case Date Jurisdiction State Cite Checked
2016-04-06 Federal LA
Comment:

key case


Chapter: 55.1011
Case Name: United States SEC v. Commonwealth Advisors, Inc., Civ. A. No. 3:12-00700-JWD-EWD, 2016 U.S. Dist. LEXIS 46438, at *4-5 (M.D. La. Apr. 6, 2016)
("[T]he now-retired MJ [United States Magistrate Judge] found that the Defendants had waived the attorney-client privilege by virtue of certain adjudicated failures, thereby granting Plaintiff's first Motion to Compel ('First Ruling'). Particularly, he did so due to the Defendants' assertion of this privilege by means of blanket boilerplate, consistent with the trend in modern federal jurisprudence of treating such broad claims as effectuating absolute and unconditional waivers of any relevant privilege and possible shield. Despite the First Ruling, wishing to provide Defendants' counsel with a chance to avoid the foreseeable consequences of their deliberate use of such vague and sweeping language in the face of such precedent, this Court reversed the MJ's decision ('Reversal'). Presented with this opportunity, a second bite at the same apple, Defendants submitted a new privilege log. Yet, while much was corrected, these privilege logs contained at least two factually incorrect entries. Noting this factual deficiency and emphasizing its implication -- that Defendants' own records could not be trusted to accurately portray the contents of the documents withheld, whether properly or improperly, in spite of Defendants' receipt of a reprieve to which much law does not entitle them, . . . -- the MJ ordered a release of all documents conceivably encompassed by the asserted privilege.")

Case Date Jurisdiction State Cite Checked
2016-04-06 Federal LA B 8/16

Chapter: 55.1011
Case Name: United States SEC v. Commonwealth Advisors, Inc., Civ. A. No. 3:12-00700-JWD-EWD, 2016 U.S. Dist. LEXIS 46438, at *4-5 (M.D. La. Apr. 6, 2016)
("[T]he now-retired MJ [United States Magistrate Judge] found that the Defendants had waived the attorney-client privilege by virtue of certain adjudicated failures, thereby granting Plaintiff's first Motion to Compel ('First Ruling'). Particularly, he did so due to the Defendants' assertion of this privilege by means of blanket boilerplate, consistent with the trend in modern federal jurisprudence of treating such broad claims as effectuating absolute and unconditional waivers of any relevant privilege and possible shield. Despite the First Ruling, wishing to provide Defendants' counsel with a chance to avoid the foreseeable consequences of their deliberate use of such vague and sweeping language in the face of such precedent, this Court reversed the MJ's decision ('Reversal'). Presented with this opportunity, a second bite at the same apple, Defendants submitted a new privilege log. Yet, while much was corrected, these privilege logs contained at least two factually incorrect entries. Noting this factual deficiency and emphasizing its implication -- that Defendants' own records could not be trusted to accurately portray the contents of the documents withheld, whether properly or improperly, in spite of Defendants' receipt of a reprieve to which much law does not entitle them, . . . -- the MJ ordered a release of all documents conceivably encompassed by the asserted privilege.")

Case Date Jurisdiction State Cite Checked
2016-04-06 Federal LA B 8/16

Chapter: 55.1011
Case Name: Motion Indus., Inc. v. Superior Derrick Servs., LLC, Civ. A. No. 15-1958 SECTION: "H"(5), 2016 U.S. Dist. LEXIS 23826, at *8, *8-9 (E.D. La. Feb. 26, 2016)
(declining to find a waiver based on plaintiff's six-week delay in responding to a document request and failure to provide a log; "When a party invoking a privilege fails to comply with the Rule 26(b)(5) requirement to provide a privilege log, courts have routinely found that all assertions of privilege or other protections against the requested discovery have been waived."; "Accordingly, because the Plaintiff failed to respond or object at all until six weeks after its deadline to do so and because when it did respond it failed to provide the Defendant or the Court the required privilege log, any objections based on a claim of privilege are waived.")

Case Date Jurisdiction State Cite Checked
2016-02-26 Federal LA B 8/16

Chapter: 55.1011
Case Name: Tatung Co. v. Shu Tze Hsu, Case No. SA CV 13-1743-DOC (ANx), 2016 U.S. Dist. LEXIS 22012, at *38 (C.D. Cal. Feb. 19, 2016)
(finding that the defendants waived privilege protection by not disclosing the existence of pertinent responsive documents or preparing a log; "Viewing this matter from a holistic perspective, the Court finds the Burlington [Burlington N. & Santa Fe Ry. v. United States District Court, 408 F.3d 1142, 1147 (9th Cir. 2005)] factors weigh strongly in favor of Tatung's position that the Former Employee Defendants have waived any privilege they now belatedly assert. Defendants utterly failed to comply with the Federal Rules and act in accordance with the spirit of the Federal Rules. The Court concludes Defendants' inexplicable delay in disclosing the existence of the WD Escrow Records, asserting any privilege, and producing a privilege log is unreasonable under the circumstances.")

Case Date Jurisdiction State Cite Checked
2016-02-19 Federal CA B 8/16

Chapter: 55.1011
Case Name: EEOC v. Office Concepts, Inc., No. 1:14-cv-00290-RL-SLC, 2015 U.S. Dist. LEXIS 170587 (N.D. Ind. Dec. 22, 2015)
(applying Rule 502, and finding a waiver, based largely on the six week delay in plaintiff's effort to retrieve inadvertently produced documents; "Office Concepts did not provide its first privilege log to the EEOC until September 15, 2015, more than six weeks after having been notified of the disclosure of the potentially privileged documents, and the day after the EEOC had filed its motion for sanctions."; "Office Concepts's seven-week delay in issuing a privilege log after having been informed by the EEOC that potentially privileged documents had been produced was unreasonable. Office Concepts did not attempt to rectify the inadvertent disclosure of privileged documents until after the EEOC cited to those documents in its motion for sanctions. Office Concepts's delay in seeking to recover the documents after being made aware of their disclosure allowed the EEOC to continue using them and negated the confidential character of the documents, including the July 12, 2012, email.")

Case Date Jurisdiction State Cite Checked
2015-12-22 Federal IN

Chapter: 55.1011
Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
(holding that the work product doctrine can protect documents created both in the ordinary course of business and in connection with litigation; analyzing communications between Ford and CRA; "Document number 2755, however, is a draft memorandum 'prepared at the request of counsel' and sent to James VanAssche, Nicole Rathbun Shanks and Douglas Gastrell, none of whom appear to be attorneys. . . . Even though this document may have been created at the request of counsel, it was not sent to or from counsel for the purpose of seeking legal advice. While such a document may be protectable as work product, CRA did not claim such protection in its privilege log. Protection of this document is inappropriate under the attorney-client privilege. Therefore, the Court will grant Defendant's Motion with regard to this document.")

Case Date Jurisdiction State Cite Checked
2015-10-27 Federal MI

Chapter: 55.1011
Case Name: In re Grand Jury Proceedings, No. 15-1555, 2015 U.S. App. LEXIS 15911 (1st Cir. App. Sept. 4, 2015)
("Under those circumstances, there was no need for a privilege log to address that general question, and appellant's failure to provide a privilege log in opposition to the motion to compel did not deprive appellant of the right to contest the government's overall crime-fraud theory."; "The failure to produce a privilege log (or otherwise identify particular documents subject to the privilege) to support the need for in camera inspection waived appellant's right to seek in camera inspection."; "Neither appellant nor appellant's attorneys ever produced a privilege log in response to the motion to compel nor otherwise complied with the requirements of Rule 45. Under this court's cases, that constitutes a waiver of the request for in camera review.").

Case Date Jurisdiction State Cite Checked
2015-09-04 Federal

Chapter: 55.1011
Case Name: Kaplan v. S.A.C. Capital Advisors, L.P., 12 Civ. 9350 (VM) (KNF), 2015 U.S. Dist. LEXIS 94610 (S.D.N.Y. July 21, 2015)
("With respect to the documents listed on the defendants' Privilege Log as belonging to the 'Common Interest' privilege type, the plaintiffs have failed to identify the underlying privilege, e.g., attorney-client or work-product, that warrants the invocation of the common interest doctrine in this case. Consequently, the plaintiffs have failed to 'expressly make the claim' that the information sought is privileged or subject to protection. Fed. R. Civ. P. 26(b)(5)(A)(i). Since the plaintiffs have not expressly claimed any applicable underlying privilege, the descriptive text provided in their Privilege Log respecting the documents sought to be withheld from disclosure does not enable the defendants to 'assess the claim' of privilege, as required by Fed. R. Civ. P. 26(b)(5)(A)(ii). As a result, the documents withheld from disclosure as belonging to the 'Common Interest' privilege type must be produced.")

Case Date Jurisdiction State Cite Checked
2015-07-21 Federal NY

Chapter: 55.1011
Case Name: Dietz & Watson, Inc. v. Liberty Mutual Insurance Co., Civ. A. No. 14-4082, 2015 U.S. Dist. LEXIS 58827 (E.D. Pa. May 5, 2015)
(in a first party bad faith case, finding that the absence of the log resulted in a waiver; "This court has not reached the conclusion that the attorney-client privilege is waived lightly. . . . The court finds, however, that D&W's Counsel acted with an intent to thwart production by stating that they produced all documents responsive to defendants' discovery requests based upon an unreasonable interpretation of the Requests for Production that ignores the clear language of the Requests. D&W and D&W's Counsel did not identify the withheld documents until ordered by the court to certify that they made a full and complete production. D&W and D&W's Counsel did not make one isolated error, such as mistakenly filing a privilege log in an untimely manner. Rather, counsel engaged in a series of calculated and deliberate failures to comply with the rules."; "As an additional sanction, the court imposes the waiver of the attorney-client privilege as to the improperly withheld documents at issue herein.")

Case Date Jurisdiction State Cite Checked
2015-05-05 Federal PA

Chapter: 55.1011
Case Name: Swoboda v. Manders, Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015)
June 3, 2015 (PRIVILEGE POINT)

“Courts React Differently to Litigants' Failure to Properly Log Withheld Documents”

The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log, or failure to prepare an adequate log. Four decisions highlight the spectrum of courts' possible remedies.

In Apple Inc. v. Samsung Electronics Co., the court condemned defendant Samsung's privilege log as having provided "only generic statements" supported by a "'vague declaration'" — but explained that he had earlier "granted in camera review" rather than ordering the documents produced. Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015) (citation omitted). In Thermoset Corp. v. Building Materials Corp. of America, the court noted that defendant did not provide a supplemental privilege log until 38 days after producing responsive documents, but declined to find a waiver despite the tardiness — relying on a "'holistic reasonableness analysis.'" Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015) (citation omitted). In United States v. Biberstein, the court criticized respondent's privilege log as providing "little help to the Court" — because it lacked pertinent dates and contained only "boilerplate language." No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015). Noting that respondent "had numerous opportunities to meet his burden to demonstrate that the documents are privileged" (id.), the court ordered defendant to produce all the withheld documents (declining respondent's offer to allow the court's in camera review). In Swoboda v. Manders, the court condemned plaintiff's failure to prepare a log — bluntly ordering plaintiff to produce "any documents related to allegations in the plaintiff's complaint" (apparently even including "communications with counsel that [took] place after the filing of a law suit"). Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015).

Given the unpredictability of courts' reactions to nonexistent, tardy, or insufficient privilege logs, litigants should comply with local rules and customs — and familiarize themselves with the presiding judge's likely approach.

Case Date Jurisdiction State Cite Checked
2015-04-27 Federal LA
Comment:

key case


Chapter: 55.1011
Case Name: Thermoset Corp. v. Building Materials Corp. of America, Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015)
June 3, 2015 (PRIVILEGE POINT)

“Courts React Differently to Litigants' Failure to Properly Log Withheld Documents”

The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log, or failure to prepare an adequate log. Four decisions highlight the spectrum of courts' possible remedies.

In Apple Inc. v. Samsung Electronics Co., the court condemned defendant Samsung's privilege log as having provided "only generic statements" supported by a "'vague declaration'" — but explained that he had earlier "granted in camera review" rather than ordering the documents produced. Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015) (citation omitted). In Thermoset Corp. v. Building Materials Corp. of America, the court noted that defendant did not provide a supplemental privilege log until 38 days after producing responsive documents, but declined to find a waiver despite the tardiness — relying on a "'holistic reasonableness analysis.'" Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015) (citation omitted). In United States v. Biberstein, the court criticized respondent's privilege log as providing "little help to the Court" — because it lacked pertinent dates and contained only "boilerplate language." No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015). Noting that respondent "had numerous opportunities to meet his burden to demonstrate that the documents are privileged" (id.), the court ordered defendant to produce all the withheld documents (declining respondent's offer to allow the court's in camera review). In Swoboda v. Manders, the court condemned plaintiff's failure to prepare a log — bluntly ordering plaintiff to produce "any documents related to allegations in the plaintiff's complaint" (apparently even including "communications with counsel that [took] place after the filing of a law suit"). Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015).

Given the unpredictability of courts' reactions to nonexistent, tardy, or insufficient privilege logs, litigants should comply with local rules and customs — and familiarize themselves with the presiding judge's likely approach.

Case Date Jurisdiction State Cite Checked
2015-04-08 Federal FL
Comment:

key case


Chapter: 55.1011
Case Name: Apple Inc. v. Samsung Electronics Co., Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015)
June 3, 2015 (PRIVILEGE POINT)

“Courts React Differently to Litigants' Failure to Properly Log Withheld Documents”

The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log, or failure to prepare an adequate log. Four decisions highlight the spectrum of courts' possible remedies.

In Apple Inc. v. Samsung Electronics Co., the court condemned defendant Samsung's privilege log as having provided "only generic statements" supported by a "'vague declaration'" — but explained that he had earlier "granted in camera review" rather than ordering the documents produced. Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015) (citation omitted). In Thermoset Corp. v. Building Materials Corp. of America, the court noted that defendant did not provide a supplemental privilege log until 38 days after producing responsive documents, but declined to find a waiver despite the tardiness — relying on a "'holistic reasonableness analysis.'" Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015) (citation omitted). In United States v. Biberstein, the court criticized respondent's privilege log as providing "little help to the Court" — because it lacked pertinent dates and contained only "boilerplate language." No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015). Noting that respondent "had numerous opportunities to meet his burden to demonstrate that the documents are privileged" (id.), the court ordered defendant to produce all the withheld documents (declining respondent's offer to allow the court's in camera review). In Swoboda v. Manders, the court condemned plaintiff's failure to prepare a log — bluntly ordering plaintiff to produce "any documents related to allegations in the plaintiff's complaint" (apparently even including "communications with counsel that [took] place after the filing of a law suit"). Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015).

Given the unpredictability of courts' reactions to nonexistent, tardy, or insufficient privilege logs, litigants should comply with local rules and customs — and familiarize themselves with the presiding judge's likely approach.

Case Date Jurisdiction State Cite Checked
2015-04-03 Federal CA
Comment:

key case


Chapter: 55.1011
Case Name: United States v. von Biberstein, No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139 (E.D.N.C. March 25, 2015)
(holding that defendant's insufficient log and repeated failures to adequately describe withheld documents waived the privilege; ordering the withheld documents produced; "Respondent had numerous opportunities to meet his burden to demonstrate that the documents are privileged. He first asserted the privilege, albeit very generally, on December 17, 2013. . . . Subsequently, respondent did not provide the Court with a cogent presentation of the facts and governing law on a document-by-document basis until the Court requested a privilege log. Time and time again, respondent has failed to meet his burden to demonstrate that the documents are privileged. The Court does not have the necessary context to make that determination with the documents before it. Accordingly, the government's motion to enforce is GRANTED.")

Case Date Jurisdiction State Cite Checked
2015-03-25 Federal NC

Chapter: 55.1011
Case Name: United States v. Biberstein, No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015)
June 3, 2015 (PRIVILEGE POINT)

“Courts React Differently to Litigants' Failure to Properly Log Withheld Documents”

The Federal Rules of Civil Procedure do not require privilege logs, but most courts require one in their local rules, or at least expect one. Courts can react in widely varying ways to litigants' failure to prepare any log, or failure to prepare an adequate log. Four decisions highlight the spectrum of courts' possible remedies.

In Apple Inc. v. Samsung Electronics Co., the court condemned defendant Samsung's privilege log as having provided "only generic statements" supported by a "'vague declaration'" — but explained that he had earlier "granted in camera review" rather than ordering the documents produced. Case No. 5:11-cv-01846-LHK-PSG, 2015 U.S. Dist. LEXIS 45386, at *59-60 (N.D. Cal. Apr. 3, 2015) (citation omitted). In Thermoset Corp. v. Building Materials Corp. of America, the court noted that defendant did not provide a supplemental privilege log until 38 days after producing responsive documents, but declined to find a waiver despite the tardiness — relying on a "'holistic reasonableness analysis.'" Case No. 14-60268-CIV-COHN/SELTZER, 2015 U.S. Dist. LEXIS 45924, at *19 (S.D. Fla. Apr. 8, 2015) (citation omitted). In United States v. Biberstein, the court criticized respondent's privilege log as providing "little help to the Court" — because it lacked pertinent dates and contained only "boilerplate language." No. 7:14-CV-175-BO, 2015 U.S. Dist. LEXIS 55139, at *4-5 (E.D.N.C. Mar. 23, 2015). Noting that respondent "had numerous opportunities to meet his burden to demonstrate that the documents are privileged" (id.), the court ordered defendant to produce all the withheld documents (declining respondent's offer to allow the court's in camera review). In Swoboda v. Manders, the court condemned plaintiff's failure to prepare a log — bluntly ordering plaintiff to produce "any documents related to allegations in the plaintiff's complaint" (apparently even including "communications with counsel that [took] place after the filing of a law suit"). Civ. A. No. 14-19-SCR, 2015 U.S. Dist. LEXIS 54329, at *11-12 (M.D. La. Apr. 27, 2015).

Given the unpredictability of courts' reactions to nonexistent, tardy, or insufficient privilege logs, litigants should comply with local rules and customs — and familiarize themselves with the presiding judge's likely approach.

Case Date Jurisdiction State Cite Checked
2015-03-23 Federal NC
Comment:

key case


Chapter: 55.1011
Case Name: Mechel Bluestone, Inc. v. James C. Justice Companies, Inc., C.A. No. 9218-VCL, 2014 Del. Ch. LEXIS 259 (Del. Ch. Ct. Dec. 12, 2014)
(analyzing privilege issues after the plaintiff created three amended privilege logs after the first log was deemed deficient; "Since providing its initial log, Mechel has re-designated certain documents as non-responsive. Those documents will be produced. By listing the documents initially on the log, Mechel's counsel represented that they were responsive. The re-designation of the documents as non-responsive is too convenient.")

Case Date Jurisdiction State Cite Checked
2014-12-12 State DE

Chapter: 55.1011
Case Name: Skepnek v. Twardowsky, LLC, Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *15 (D. Kan. Sept. 4, 2014)
("Having found that defendants failed to make the required showing that the O'Donnell and Jacques client e-mails were protected by the attorney-client privilege, Judge O'Hara ordered defendants to produce all e-mail communications between defendants and the two clients.")

Case Date Jurisdiction State Cite Checked
2014-09-04 Federal KS

Chapter: 55.1011
Case Name: Skepnek v. Twardowsky, LLC, Case No. 11-CV-4102-DDC-JPO, 2014 U.S. Dist. LEXIS 122918, at *14-15 (D. Kan. Sept. 4, 2014)
("The Court agrees with Judge O'Hara [magistrate judge]. Defendants' half-hearted attempt at a privilege log--providing only the name of the sender and the size and date of the allegedly privileged e-mails -- is exactly the type of 'blanket claim' that will not satisfy defendants' burden 'to provide sufficient information to enable the court to determine whether each element of the asserted privilege is satisfied.' . . . . Thus, Judge O'Hara's conclusion that defendants never established that the client e-mails are privileged was not 'clearly erroneous.'")

Case Date Jurisdiction State Cite Checked
2014-09-04 Federal KS

Chapter: 55.1011
Case Name: Ellis v. Arrowood Indem. Co., Civil Action No. 2:14-mc-00146, 2014 U.S. Dist. LEXIS 121913, at *15 (S.D. W. Va. Sept. 2, 2014)
("The current privilege log and Arrowood's description of the privileged documents is insufficient for this court to render a ruling. In particular, with respect to the emails, the privilege log only identifies who sent the email, but does not describe the basic subject matter of the email. Instead, Arrowood has made only conclusory assertions that these documents are privileged, which courts generally find insufficient to meet the burden of establishing privilege.")

Case Date Jurisdiction State Cite Checked
2014-09-02 Federal WV

Chapter: 55.1011
Case Name: SEC v. Yorkville Advisors, LLC, 12 Civ. 7728 (GBD) (HBP), 2014 U.S. Dist. LEXIS 72090 (S.D.N.Y. May 27, 2014)
(finding that the SEC waived its work product protection by producing an inadequate log late; "Neither the Federal Rules of Civil Procedure nor the Local Civil Rules permit any party to make its assertions of privilege a moving target.")

Case Date Jurisdiction State Cite Checked
2014-05-27 Federal NY

Chapter: 55.1011
Case Name: SEC v. Yorkville Advisors, LLC, 12 Civ. 7728 (GBD) (HBP), 2014 U.S. Dist. LEXIS 72090 (S.D.N.Y. May 27, 2014)
(finding that the SEC waived its work product protection by producing an inadequate log late; "Accordingly, the SEC's unjustified failure to serve indices of privileged documents in a timely and proper manner operates as a waiver of any applicable privilege, with the exception of the SARs privilege.")

Case Date Jurisdiction State Cite Checked
2014-05-27 Federal NY

Chapter: 55.1011
Case Name: McNamee v. Clemens, No. 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 58829, at *5 (E.D.N.Y. Apr. 28, 2014)
June 18, 2014 (PRIVILEGE POINT)

"Roger Clemens Strikes Out on Privilege Assertions Because of a Bad Log"

Most courts offer a second chance to litigants who have withheld arguably protected documents, but who prepare a tardy or inadequate privilege log. However, courts quickly lose patience with litigants who seem to flout the rules.

In McNamee v. Clemens, former New York Yankees pitcher and defamation defendant Roger Clemens withheld documents, but relied "on a one-sentence assertion of privilege" rather than supplying the required privilege log. No. 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 46338, at *12 (E.D.N.Y. Apr. 2, 2014). The Magistrate Judge had (1) reminded Clemens of the log requirement; (2) invited Clemens to provide a further showing to support his withholding (which Clemens "was only able to do so with respect to one document"); and (3) "took the extraordinary step of reviewing each and every document that Defendant claimed was privileged." Id. at *14 n.6. The District Judge upheld the Magistrate Judge's finding that Clemens had waived any privilege or work product protection. Several weeks later, the court denied Clemens' motion for a stay pending his petition for a writ of mandamus to the Second Circuit. In McNamee v. Clemens, No. 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 58829, at *5 (E.D.N.Y. Apr. 28, 2014), the court criticized Clemens' motion "as being a veritable hodgepodge of identical sentences" from his earlier pleadings. The court also rejected Clemens' argument that preparing a detailed log could be too difficult. The court sarcastically noted that "it would be curious if [Clemens] did argue that a document-by-document listing was too onerous for counsel to perform, seeing as he has now several times over caused the Court to conduct such a review." Id. at *6.

Litigants withholding documents often receive second and even third chances to prepare proper logs, as long as they try their best to comply with federal rules and to meet the court's expectations. However, litigants running afoul of either usually lose their privilege fights and anger frustrated courts.

Case Date Jurisdiction State Cite Checked
2014-04-28 Federal NY
Comment:

key case


Chapter: 55.1011
Case Name: McNamee v. Clemens, No. 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 46338, at *12 (E.D.N.Y. Apr. 2, 2014)
June 18, 2014 (PRIVILEGE POINT)

"Roger Clemens Strikes Out on Privilege Assertions Because of a Bad Log"

Most courts offer a second chance to litigants who have withheld arguably protected documents, but who prepare a tardy or inadequate privilege log. However, courts quickly lose patience with litigants who seem to flout the rules.

In McNamee v. Clemens, former New York Yankees pitcher and defamation defendant Roger Clemens withheld documents, but relied "on a one-sentence assertion of privilege" rather than supplying the required privilege log. No. 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 46338, at *12 (E.D.N.Y. Apr. 2, 2014). The Magistrate Judge had (1) reminded Clemens of the log requirement; (2) invited Clemens to provide a further showing to support his withholding (which Clemens "was only able to do so with respect to one document"); and (3) "took the extraordinary step of reviewing each and every document that Defendant claimed was privileged." Id. at *14 n.6. The District Judge upheld the Magistrate Judge's finding that Clemens had waived any privilege or work product protection. Several weeks later, the court denied Clemens' motion for a stay pending his petition for a writ of mandamus to the Second Circuit. In McNamee v. Clemens, No. 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 58829, at *5 (E.D.N.Y. Apr. 28, 2014), the court criticized Clemens' motion "as being a veritable hodgepodge of identical sentences" from his earlier pleadings. The court also rejected Clemens' argument that preparing a detailed log could be too difficult. The court sarcastically noted that "it would be curious if [Clemens] did argue that a document-by-document listing was too onerous for counsel to perform, seeing as he has now several times over caused the Court to conduct such a review." Id. at *6.

Litigants withholding documents often receive second and even third chances to prepare proper logs, as long as they try their best to comply with federal rules and to meet the court's expectations. However, litigants running afoul of either usually lose their privilege fights and anger frustrated courts.

Case Date Jurisdiction State Cite Checked
2014-04-02 Federal NY
Comment:

key case


Chapter: 55.1011
Case Name: McNamee v. Clemens, 09 CV 1647 (SJ) (CLP), 2014 U.S. Dist. LEXIS 46338 (E.D.N.Y. April 2, 2014)
(finding that defendant Roger Clemens' late and inadequate log resulted in a waiver; "The requirement of a privilege log was brought to Defendant's attention on July 9, 2013. Defendant Clemens failed to provide a privilege log with his discovery responses, relying instead on a one-sentence assertion of privilege. . . . Judge Pollak was entirely within her authority in ordering production of the documents in question on the grounds that Defendant waived his privilege by failing to timely submit a privilege log.")

Case Date Jurisdiction State Cite Checked
2014-04-02 Federal NY

Chapter: 55.1011
Case Name: Skepnek v. Roper & Twardowsky, LLC, Case No. 11-4102-KHV, 2013 U.S. Dist. LEXIS 163475, at *7-8, *8 (D. Kan. Nov. 18, 2013)
("Defendants have made no showing that they provided a privilege log when they originally withheld the information from discovery. They have made no showing that they submitted a privilege log to the court in response to the underlying motion to compel. Defendants did not even attach a privilege log in response to the present motion to enforce but only informed the court that they planned to submit one to plaintiffs."; "'Plaintiffs did attach defendants' recently submitted privilege log as an exhibit to the former's reply brief. This privilege log was provided to plaintiffs after the court's ruling on the underlying motion to compel and after responding to the instant motion to enforce. Defendants had the duty to timely provide the information required by Rule 26(b)(5) and they failed to do so. The court finds that any claim of privilege defendants may have asserted has been waived." (footnote omitted))

Case Date Jurisdiction State Cite Checked
2013-11-18 Federal KS B 5/14

Chapter: 55.1011
Case Name: In re Behr Dayton Thermal Prods., LLC, Case No. 3:08-cv-326, 2013 U.S. Dist. LEXIS 81069, at *13 n.5 (S.D. Ohio June 10, 2013)
(holding that a litigant claiming work product protection had to specify the exact date on which it first anticipated litigation; rejecting defendant Aramark's claim that it anticipated litigation when plaintiff filed its complaint, because Aramark denied the allegations; "PRIV1237 bears a footnote which states: 'CONFIDENTIAL -- Attorney-Client Privileged[;] These materials have been prepared at the request of legal counsel for Aramark Uniform & Career Apparel.' However, Aramark did not assert the attorney-client privilege on its privilege log for this document. . . . As such, the Court cannot find the attorney-client privilege applies where it has not been asserted by the party itself.")

Case Date Jurisdiction State Cite Checked
2013-06-10 Federal OH B 4/14

Chapter: 55.1011
Case Name: FDIC v. Fid. & Deposit Co. of Md., No. 3:11-cv-19-RLY-WGH, 2013 U.S. Dist. LEXIS 77702, at *9-10 (S.D. Ind. June 3, 2013)
("[M]any of the descriptions are simply too vague to allow F&D or the court to determine that these communications were made to or from Devine [in-house lawyer] while he acted in his legal advisor role. The court therefore cannot find that attorney-client privilege exists for most of the communications.")

Case Date Jurisdiction State Cite Checked
2013-06-03 Federal IN B 4/14

Chapter: 55.1011
Case Name: Chimney Rock Pub. Power Dist. v. Tri-State Generation & Transmission Ass'n., Civ. A. No. 10-cv-02349-WJM-KMT, 2013 U.S. Dist. LEXIS 67714, at *20 (D. Colo. May 13, 2013)
(holding that a company waived the privilege protection by failing to include documents on a log; "Therefore, failure to list these email communications on its privilege log cannot be characterized as inadvertent. Therefore, Tri-State has waived any privilege it might have asserted.")

Case Date Jurisdiction State Cite Checked
2013-05-13 Federal CO B 3/14

Chapter: 55.1011
Case Name: Chimney Rock Pub. Power Dist. v. Tri-State Generation & Transmission Ass'n., Civ. A. No. 10-cv-02349-WJM-KMT, 2013 U.S. Dist. LEXIS 67714, at *20 (D. Colo. May 13, 2013)
("Therefore, failure to list these email communications on its privilege log cannot be characterized as inadvertent. Therefore, Tri-State has waived any privilege it might have asserted.")

Case Date Jurisdiction State Cite Checked
2013-05-13 Federal CO B 3/14

Chapter: 55.1011
Case Name: Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., Case No. 2:07-cv-116, 2013 U.S. Dist. LEXIS 34943, at *17 (S.D. Ohio Mar. 13, 2013)
(concluding that Morgan Lewis's (defendant's lawyer) production of a privileged document resulted in a waiver; finding that the ethics obligations of a receiving lawyer did not affect the inadvertent disclosure analysis; "The Magistrate Judge essentially found that Medex CP's failure to produce a privilege log discredited its attempt to establish that it took reasonable precautions to prevent an inadvertent disclosure. Medex CP fails to show that this finding is clearly erroneous or contrary to law.")

Case Date Jurisdiction State Cite Checked
2013-03-13 Federal OH B 3/14

Chapter: 55.1011
Case Name: Sell v. Gama, No. 1 CA-SA 12-0282, 2012 Ariz. App. LEXIS 10, at *2-2, *3 (Ariz. At. App. Jan. 10, 2013)
(holding that a company forfeited its privilege protection by not describing a document on its privilege log, but not finding a subject matter waiver; "[T]he inadvertent failure to list the questionnaires on the privilege log was not so extreme as to imply a subject matter waiver for all related documents. Counsel for the Trustee took the necessary steps to protect the other questionnaires from discovery and took the necessary steps after learning about the inadvertent production of two questionnaires to preserve the protection as to those thirty-five questionnaires. Accordingly, the privilege was not waived with respect to these documents."; "[W]e find that the penalty of being required to produce 'all related documents,' which would include significant ongoing attorney-client communications and work-product protected materials in this litigation, is a penalty disproportionate to the offense. Consequently, we reverse the court's October 30, 2012 order except with regard to the two investor questionnaires that were not properly identified on the privilege log.")

Case Date Jurisdiction State Cite Checked
2013-01-10 State AZ B 7/13

Chapter: 55.1011
Case Name: Fleisher v. Phoenix Life Ins. Co., No. 11 Civ. 8405 (CM) (JCF), 2013 U.S. Dist. LEXIS 964, at *7, *8, *10 (S.D.N.Y. Jan. 3, 2013)
("Here, Phoenix's privilege log was both tardy and inadequate. To be sure, generating a log may be time-consuming, and parties responding to wide-ranging discovery demand should be given some leeway. But here, Phoenix received notice of the subpoena in June and produced nothing to support its claims of privilege and work product until December, more than five months later, after the plaintiffs had moved to compel compliance. Nor did Phoenix seek relief from the Court in the interim."; "Even if I were to excuse Phoenix's delay, the log that it has now submitted is wholly insufficient. The purpose of a log is to permit the opposing party and the court to evaluate claims of privilege or work product protection. Again, courts are not blind to the potential burden of generating a document-by-document privilege log, and so have authorized parties to identify purportedly privileged documents by category. . . . Here, however, the catalogue proffered by Phoenix falls far short of an acceptable categorical log. It lists only four broad classes of documents: 'documents defining scope of Towers Watson engagement,' 'policy data,' 'draft reports,' and 'Towers internal project administration materials.' . . . Only within the draft report category are any individual documents identified, but even there, the description that purports to apply to all of them is exceedingly general and unhelpful. By failing to provide a meaningful log, then, Phoenix has forfeited any claim of privilege or work product protection."; "A party considering a course of conduct with legal consequences may wish to evaluate its exposure to future litigation and, in doing so, generate attorney-client communications and work product.")

Case Date Jurisdiction State Cite Checked
2013-01-03 Federal NY B 7/13

Chapter: 55.1011
Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 593 n.178 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "Plaintiffs are not entitled to an opportunity to attempt to make a record at this late stage of the proceedings, as they failed to make a reasonable effort earlier to provide a listing of the names in the log and have failed to comply with Local Rule 26.1(g).")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 55.1011
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013, at *24 (S.D. Ohio Nov. 13, 2012)
("Where a party fails to assert the attorney-client privilege on its privilege log, the privilege is waived.")

Case Date Jurisdiction State Cite Checked
2012-11-13 Federal OH B 7/13

Chapter: 55.1011
Case Name: Brainware, Inc. v. Scan-Optics, Ltd., Civ. A. No. 3:11cv755, 2012 U.S. Dist. LEXIS 97121, at *11-12, *13 (E.D. Va. July 12, 2012)
("Scan-Optics, Ltd. did not originally identify document Nos. 53, 58-66, and 73-74 as privileged documents. It filed a Second Supplemental Privilege Log identifying these as privileged on June 6, 2012. Scan-Optics, Ltd. explains that it initially did not believe these documents were relevant because it did not realize that its corporate structure would be an issue in the case."; "The Scheduling Order in this case required the parties to serve their privilege logs at the same time as their objections to requests for production, and provided that any claim of privilege not so raised would be waived . . . . Scan-Optics, Ltd. did not raise its claim of privilege in accord with that Order, and therefore, has waived its rights to claim the documents are privileged.")

Case Date Jurisdiction State Cite Checked
2012-07-12 Federal VA B 3/16

Chapter: 55.1011
Case Name: ePlus, Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 252 (E.D. Va. 2012)
("Lawson did not fully comply with the October 19 Order or Rule 26. The log contains several deficiencies. First, many entries do not contain author and recipient information. Lawson admits that these entries are technically deficient. For the entries that do not contain this information, Lawson has waived the privilege.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal VA B 4/13

Chapter: 55.1011
Case Name: In re Capital One Bank Credit Card Interest Rate Litig., 286 F.R.D. 676, 679, 680 (N.D. Ga. 2012)
(holding that a failure to claim work product protection in an initial log forfeited the chance to claim it later; "On a number of documents, Capital One asserts work product protection for privilege log entries purporting to relate to the giving or receiving of legal advice. Plaintiffs argue that although these items would seem to be more appropriate for consideration within the framework of the attorney-client privilege, Capital One is barred from asserting the privilege to the extent it has not already done so."; "Capital One is represented by sophisticated attorneys who are very familiar with the attorney-client and work product privileges. Yet, despite this, Capital One asserts the incorrect privilege as to a fairly large number of documents.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal GA B 5/13

Chapter: 55.1011
Case Name: Scott & Stringfellow, LLC v. AIG Commercial Equip. Fin., Inc., Civ. No. 3:10cv825-HEH-DWC, 2011 U.S. Dist. LEXIS 51028 (E.D. Va. May 12, 2011)
(holding a litigant's failure to produce a timely log did not result in a waiver).

Case Date Jurisdiction State Cite Checked
2011-05-12 Federal VA

Chapter: 55.1099
Case Name: Lindon v. Kakavand, Civ. A. No. 5:13-026-DCR, 2014 U.S. Dist. LEXIS 113304 (E.D. Ky. Aug. 15, 2014)
("The plaintiff now contends that UKMC has waived any privilege claim because the initial privilege log did not provide for a comprehensive list of recipients. This is incorrect."; ". . . Any perceived deficiency has been remedied by UKMC's supplementation of its privilege log."; "Here, although the Magistrate Judge found UKMC's privilege log to be deficient, UKMC was directed to supplement. It timely complied with the Court's order, providing all necessary information. . . . The sanction of waiver is not appropriate, especially since UKMC has complied with the court's supplementation directive.")

Case Date Jurisdiction State Cite Checked
2014-08-15 Federal KY

Chapter: 55.1101
Case Name: Jones v. U.S. Border Patrol Agent Hernandez, Case No. 16-CV-1986-W (WVG), 2017 U.S. Dist. LEXIS 130807 (S.D. Cal. Aug. 16, 2017)
("As the Court noted above, were this simply a matter of untimely objections and privilege log production, the Court may have been amenable to finding Plaintiff had not waived any privilege or protection. However, the Court is troubled by what appears to be an attempt to hide the ball from the defense. If discovery is withheld based on any privilege or protection, such should be stated in a privilege log to provide the other side an opportunity to meet and confer and possibly challenge that claimed privilege. Parties are not permitted to unilaterally decide that a privilege applies, withhold a document, not notify the other side, and instead produce a sanitized version of a then-existing responsive document at a later date. Here, the annotated map should have been included in a privilege log from the beginning regardless of whether a clean copy was going to be obtained. It was a document that existed at the time Defendants' RFPs issued, was responsive to those requests, and was in Plaintiff's possession. Plaintiff's admission that he believed he could print and produce a 'clean' copy of the map only further troubles the Court. Even if Plaintiff had a clean copy of the map in his possession, both copies of the map would have been responsive. In that scenario, Plaintiff could withhold the annotated map, but only after following the proper procedure set forth in Rule 34. The clean copy of the map would not have absolved Plaintiff of this obligation with respect to an otherwise responsive document."; "The Court finds that Plaintiff's compliance with the privilege log and objection provisions in Rules 26 and 34 was untimely. More importantly, the reason behind the untimely compliance is significant. Defense counsel had to extract the privilege log information from Plaintiff after his continued failure to correct his counsel's prior misrepresentation of the nature of the annotations, failure to produce a privilege log, and apparent intention to not produce the annotated map at all save for the fortuitous inability to reprint a 'clean' copy from the Nike website. These factors exacerbate what would otherwise have been simple untimeliness.")

Case Date Jurisdiction State Cite Checked
2017-08-16 Federal CA

Chapter: 55.1205
Case Name: Petrobras Americas Inc. v. Vicinay Cadenas, S.A., Civ. A. No. 4:12-cv-0888, 2018 U.S. Dist. LEXIS 42846 (S.D. Tex. March 15, 2018)
(analyzing protection for bills submitted by a company whose employee acted as a litigant's Rule 30(b)(6) witness; "The entries describe Mr. Masson's [Former Petrobras employee now employed by another company, and who acted as a Rule 30(b)(6) witness for Petrobras] work and communications with Petrobras' attorneys while preparing to testify in this lawsuit as a representative of Petrobras. These entries clearly fall within the attorney-client and work product privileges. Petrobras did not timely assert privilege, though, and it failed to file a motion to quash the subpoena. However, since the request clearly and unambiguously sought the production of privileged information, it exceeded the bounds of fair discovery. When it learned of the subpoena, Petrobras affirmatively took steps to protect the information by instructing RiserTec to withhold the privileged information and the privileged information was never disclosed to an adverse party. Rule 45 would allow Petrobras to assert these privileges and demand return of the materials even if the information had been produced in response to the subpoena. Fed. R. Civ. P. 45(e)(2)(B). In light of the circumstances, Petrobras' untimely assertion of privilege did not waive those privileges.")

Case Date Jurisdiction State Cite Checked
2018-03-15 Federal TX

Chapter: 55.1303
Case Name: Firefighters' Retirement System v. Citco Group Ltd., Civ. A. No. 13-373-SDD-EWD, 2018 U.S. Dist. LEXIS 85697 (M.D. La. May 22, 2018)
(analyzing privilege choice of law issues, and ultimately concluding that UBS was inside privilege protection as a client consultant, although citing Kovel, because UBS's assistance was "indispensable" to the provision of legal advice (citing and quoting other cases); "[T]he privilege log setting out withheld UBS Documents contains descriptions that meet the Citco Defendants' burden of establishing that UBS was involved in these communications with the primary purpose of obtaining or facilitating the rendition of legal advice. The descriptions of the communications include 'email discussing intent to request legal advice from counsel (N. Braham) re: Project Rainier draft disclosure agreement for UBS,' 'email chain from counsel reflecting legal advice re: summary of key legal terms in Richcourt bids,' ''email from counsel reflecting legal advice re: draft share purchase agreement for Richcourt sale,' 'email chain with counsel providing legal advice and requesting information in order to provide legal advice re: non-compete provisions in Project Rainier share purchase agreement,' and 'email chain with counsel reflecting and requesting legal advice re: Project Rainier financial regulatory issues.' Plaintiffs do not point to any particular entry on the privilege log describing withheld UBS Documents which they assert is deficient.")

Case Date Jurisdiction State Cite Checked
2018-05-22 Federal LA