Showing 563 of 563 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2004-01-01 Federal VA B 12/05

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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.")

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