Showing 500 of 500 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: 55.9

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2013-08-09 Federal NY B 4/14

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2014-08-15 Federal KY